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REPORTS  '4^4-'^ 

CASES  l^"^^" 

ARGUED  AND  DETERMINED  U    0 

COURT  OF  CHANCERY 


k 


M- 


STATE  OF  MICHIGAN. 


By  henry  N.  walker. 


SECOND    EDITION,    ANNOTATED    BY 
^MARSHALL    D.    EAVELL, 

Professor  in  Union  College  of  Law.  Chirago.  and  Author  of 
•■  A  Treatise  on  the  Lav:  of  Fixtures,  £tc." 


CHICAGO : 
CALLAGIIAN    &    COMPANY. 

1878. 


K103O/- 


Entered  nccording  to  Act  of  Congress,  in  tlie  year  1878,  by 

CALLAGHAN  &  COMPANY, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


STEREOTYPED  AND   PRINTED 

BY  THE 

CHICAGO   LEOAl.  NEWS  CO. 


TABLE 


OF   THE  CASES    REPORTED. 


Albany  City  Bank  v.  Sfeevens...       6 

V.  Dorr 317 

Attorney    General    v.    Oakland 
County  Bank 90 

Bachelor  V.  Nelson 449 

Bailey  v.  Murphy 305 

V. 424 

V.  Gould 478 

(Gould  i>.) " 

Bank  of  Michigan  v.  Niles 99 

V. 398 

(Chenev.) 511 

Barstow  v.  Smith 394 

Beach  v.  White 495 

Benedict  w.  Denton 336 

V.  Thompson 44G 

Benhard  v.  Darrow 519 

Bergh  v.  Poupard 5 

Bird  V.  Hamilton 361 

Bishop  V.  Williams 423 

Bragg  «.  Whitcomb 307 

Britain  (Hurlbut  v.) 454 

Bronson  v.  Green   56 

; V.  486 

Brooks  V.  Mead 389 

Brown  (Stevens  v.) 41 

V.  Chase 43 

V.  Byrne 453 

Burgess  (Peck  v-) 485 

Burpee  v.  Smith 327 

Byrne  (Brown  v.) 453 

Camp  (How  v.) 427 

(Eldred  i;.) " 

(Kelso  t).) " 

Campbell   adm.    etc.    (Quacken- 

bush  V.) 525 

Carroll  r.  Potter 355 

V.  Rice 373 

Cavanaugh  V.  Jakcway 344 

Chamberlin  v.  Darragh 149 


Chapin  (Rood  v.) 79 

Chase  (Brown  v.) 43 

Chene  v.  Bank  of  Michigan 511 

Chipman  v.  Thompson 405 

City  of   Monroe,    (La  Plaisance 

Bay  Harbor  Co.  v.) 155 

Clark  (Jacox  i>.) 249 

( V.) 508 

(Fox  V.) 535 

Comstock  V.  Howard 110 

(Westbrook  v.) 314 

Cooley  (Gilbert  t;.) 494 

Cooper  V.  Ulmann 251 

Cote  V.  Dequindre 64 

Crane  (Sutherland  v.) 523 

Cutter  V.  Griswold 437 

Darragh  (Chamberlin  v.) 149 

Darrow  (Benhard  v.  ) 519 

Davis  (Wixom  v.) 15 

De  Armand  v.  Phillips 186 

Dennis  v.  Hemingway 387 

Denton  (Benedict  t;.) 336 

Dequindre  (Suydam  v.) 23 

(Cote  V.) 64 

Disbrow  (Godfrey  v.) 260 

Dixon  (Garlinghouse  v. )....» 440 

Dorr,  petitioner,  &c 145 

Dorr  (Albany  City  Bankz^.) 317 

Dunning  (Wallace  v.) 416 

Edwards  v.  Hulbert 54 

Eldred  v.  Camp 427 

Emmons  v.  Emmons 532 

Fellows  (Lawrence  v.) 468 

Fitch  (AVharton  r.) 143 

Forbes  (White  ?j.) 112 

Forsyth  (Morey  v.) 465 

Fox  V.  Clark 535 

Freeman  v.  Michigan  State  Bank,     62 


6094C1 


IV 


TABLE  OF  THE  CASES  KEPORTED. 


Garlinghouse    ?■.  Dixon 440 

Gilberts.  Cooley 494 

Gilkey  ii.  Paige 520 

Oodt'roy  v.  Disbrow 260 

Gould  V.  Tryon 339 

r.  — 853 

(Bailey  i'.) 478 

Graham  (Thomas  v.) 117 

Green  (Bronson  v.) 56 

( V.) 486 

V.  Stone 109 

Griswold  (Cutter  v.) 437 

Hamilton  (Bird  v.) 361 

Hammond  V.Michigan  State  Bank  214 

Harleston  (Trowbridge  v.) 185 

Hart  V.  Linsday 72 

i-. 144 

V.  McKeen 417 

Hastings  (Michigan  State  Bank  v.)      9 

Hemingway  (Dennis  i'. ) 387 

V.  Preston 528 

How  V.  Camp 427 

Howard  (Comstock  v.) 

Howard  v.  Palmer 391 

Hubbard  (Williams  v.) 28 

Hulbert  (Edwards?;.) ': 54 

Kurd  (Norris  v.) 102 

Hurlbut  V.  Britain 454 

Ingersoll  v.  Kirby 27 

Ingerson  v.  Starkweather 346 

Jacox  V.  Clark 249 

V. 508 

Jakeway  (Cavenaugh  v.) 344 

Jerome  (Seymour  v.) 356 

V. 359 

Jewett  (Ward  v.) 45 

Johnson  v.  Johnson 309 

V. '- 331 

Jones  V.  Smith 115 

Kelso  w.  Camp 427 

Kimball  v.  Ward 439 

Kirby  (Ingersoll  v.) 27 

( V.) 65 

Lane  (Thayer  «.) 200 

La  Plaisance  Bay  Harbor  Co.  v. 

City  of  Monroe 155 

Lawrence  v.  Fellows 468 

Lewis  (Woodbui'y  v.) 256 

Linsday  (Hart  v.) 72 

( v.) 144 

Lyon  (Weed  v.) 77 

Mason  v.  Payne 459 


McDowell  (Wing  v.) 175 

(Simmons  v.) " 

McKeen  (Hart  v.) 417 

Mead  (Brooks  v.) 389 

Mercer  ?>.  Williams 85 

Michigan  State  Bank  v.  Hastings       9 
Michigan  State  Bank  (Freeman  v.)    62 

(Hammond  v.)  214 

Morey  v.  Forsyth 465 

Murphy  (Bailey  v.) 305 

( v.) 424 

Nelson  (Bachelor  v.) 449 

Niles  (Bank  of  Michigan  v.) 99 

( V.) 398 

Norris  v.  Hurd 102 

V.  Showerman 206 

Oakland  County  Bank  (Attorney 
General  v.) 90 

Paddock  (Payne  v.) 487 

Paige  (Gilkey  v.) 520 

Palmer  (Howard  v.) 391 

Parker  v.  Parker 457 

Payne  (Mason  v.) 459 

V.  Paddock 487 

Peck  r.  Bui'gess 485 

Phillips  (DeArmand  v.) 186 

Potter  (Carroll  v.) 355 

Poupard  (Berghv.) 5 

Prentiss  (Thurston  w.) 529 

Preston  (Hemingway  i>.) 528 

Quackenbush  v.  Campbell,  adm., 
&c., 525 

Reeves  v.  Scully 248 

V. 340 

Rice  (Carroll  v.) 373 

River  Raisin  and  Grand  River  R. 

R.  Co.,  (Welles  v.) 35 

Rood  V.  Chapin 79 

V.  Winslow 340 

Russell  V.  Waite 31 

Savage  (Wood  v.) 471 

Sawyer  w.  Sawyer 48 

V.  Studley 153 

Schwarz  v.  Sears 19 

V. 170 

V.  Wendell  267 

Scully  (Reeves  v.) 248 

( V.) 340 

Sears  (Schwarz  ij.) 19 

( V.)  170 

Seymour  v.  Jerome 356 

Jerome  v.) 359 

Showerman  (Norris  v.)  206 


TABLE  OF  THE  CASES  REPORTED. 


Hiinmons  v.  McDowell 173 

)Smith  V.  Thomiison 1 

(Jones  ('.) 115 

(Burpee  c.) 327 

(Barstow  v.) 394 

Snyder  (Taylor  v.) 490 

Stark weatlier  (Iiigerson  v.) 346 

Steevens  (Albany  City  Bank  v.)..       6 

Stevens  t).  Brown 41 

Stewart  (Comstock  v.) 110 

(Whipple  ('.) 357 

Stockton  V.  Williams 120 

Stone  (Green  v.) 109 

Story  V.  Story 421 

Studley  (Sawyer  v.) 153 

Sutherland  v.  Crane 523 

Suydam  v.  Dequindre 23 

Swift  (Thayer  y.) 384 

Taylor  v.  Snyder 490 

Terry  (Weed?;.) 501 

Thayer  v.  Lane 200 

V.  Swift 384 

Thomas  v.  Stone 117 

Thompson  (Smith  v.) 1 

(Chipman  v.)  405 

(Benedict  v.)  446 

Thurston  v.  Prentiss 529 

Trowbridge  V.  Ilarleslon 185 

Tryon  (Gould  v.) 339 

( V.) 353 


Ulmann  (Cooper  n.) 251 

Waite  (Russell  v.) 31 

Wallace  v.  Dunning 416 

Ward  V.  Jewett 45 

Ward  (Kimball  v.) 439 

Webb  t).  Williams 452 

V. 544 

Weed  V.  Lyon 77 

V.  Terry 501 

Welles  V.  Eiver  Kaisin  and  Grand 

River  R.  R.  Co 35 

Wendell  (Schwarz  v.) 267 

Westbrook  v.  Corastock 314 

Wharton  v.  Fitch 143 

Whipple  V.  Stewart 357 

Whitcomb  (Bragg  v.) 307 

White  V.  Forbes 112 

(Beach  v.) 495 

Williams  v.  Hubbard 28 

(Mercer  v.) 85 

(Stockton  V.) 120 

(Bishop  V.) 423 

(Webb  V.) 452 

( V.) 544 

Wing  V.  McDowell 175 

Winslow  (Rood  v.) 340 

Wixom  V.  Davis 15 

Wood  V.  Savage 471 

Woodbury  v.  Lewis 256 


PREFACE 

TO   OEIGlNxVL  EDITIOK. 


The  present  volume  brings  tlie  reports  of  cases  decided  in 
the  Court  of  Chancery,  down  to  tlie  time  of  publication.  The 
volume  lately  published  containing  all  the  decisions  of  the  late 
Chancellor,  which  had  been  preserved,  the  two,  together,  em- 
brace all  the  principal  decisions  which  have  yet  been  made  in 
this  Court. 

In  preparing  this  volume  for  the  press,  the  anthor  has  fol- 
lowed, in  all  instances,  the  manuscripts  of  the  Chancellor. 
The  work,  as  it  progressed,  has  all  been  submitted  to  his 
inspection;  and  such  alterations  have  been  made  as  he  sug- 
gested. The  author  begs  leave  to  acknowledge  his  obligations 
for  the  assistance  he  has  given  from  the  commencement  of  the 
work  to  its  termination,  in  examining  the  copy  prepared  for  the 
press,  and,  in  many  instances,  furnishing  his  own  abstracts  to 
be  prefixed  to  the  cases.  In  so  doing,  he  has  rendered  an  im- 
portant service,  both  to  the  reporter  and  the  members  of  the 
bar  generally,  by  contributing  to  render  the  volume  correct  in 
all  its  essential  particulars. 

It  will  be  perceived,  by  referring  to  the  heads'of  the  several 
pages,  that  the  opinions  are  delivered  in  several  circuits. 
Under  the  system  now  existing,  there  are  five  circuits;  each 
having  a  register  and  the  usual  organization  of  a  separate 
court.  There  are,  however,  no  subordinate  judges ;  but  the 
[*viii]  Chancellor  holds  his  court  in  the  several  *circuits,at  reg- 
ular terms  prescribed  by  law.  The  service  of  process  is  not 
confined,  in  the  several  circuits,  to  their  respective  limits.  A  bill 
may  be  filed  in  any  one  of  them  to  reach  persons  or  property 
in  any  part  of  the  State.  There  is,  in  fact,  but  one  court,  sit- 
ting at  difierent  places  for  the  convenience  of  suitors.     The 


viii  PREFACE. 

several  judges  of  the  Supreme  Court  are  authorized  to  allow 
injunctions  in  the  absence  of  the  Chancellor;  and,  in  cases 
where  he  is  interested,  any  one  of  them  may  sit  in  his  place. 
An  appeal  lies  from  the  decisions  of  the  Court  of  Chancery  to 
the  Supreme  Court,  which  is  the  Court  of  last  resort. 

The  omission  of  the  points  and  arguments  ol  counsel,  in 
many  cases,  where  it  may  be  thought  they  should  have  been 
inserted,  requires  some  explanation.  At  the  time  the  author 
received  his  appointment,  a  considerable  period  had  elapsed 
since  the  argument  and  decision  of  nearly  all  of  the  cases  con- 
tained in  this  volume.  Few  briefs  had  been  furnished,  as  the 
office  had  been  but  lately  revived;  and  a  desire  being  generally 
expressed  that  the  publication  should  not  be  delayed,  it  seemed 
more  advisable  to  proceed  with  the  materials  on  hand,  than  to 
attempt  to  collect  others  from  all  parts  of  the  State,  when  the 
loss  of  time  would  only  be  compensated  by,  at  best,  a  partial 
success. 

With  these  explanatory  remarks,  the  work  is  submitted  to 
the  public. 

Detroit^  April  10th,  1845. 


AMENDMENTS  TO  THE  RULES. 


June  7th,  1842. 

It  is  ordered  by  the  Chancellor,  that  the  81st  rule  of  the 
Court  be  amended  so  as  to  read  as  follows: 

"Rule  81. 

"  When  the  Master  has  prepared  tlie  draft  of  his  report,  he 
shall  deliver  copies  thereof  to  such  of  the  parties  as  apply  for 
the  same,  and  shall  assign  a  time  and  place  for  the  parties  to 
bring  in  objections,  and  for  settling  the  draft  of  the  report,  and 
shall  issue  his  suminonsfor  that  purpose;  but  no  summons 
to  see  the  draft  of  the  report,  and  take  copies  thereof,  shall  be 
necessary.  On  the  return  of  the  summons,  or  on  such  other 
day  as  may  then  be  assigned  by  the  Master  for  that  purpose, 
if  objections  are  filed  by  either  party,  he  may  proceed  to  hear 
the  parties  on  such  objections,  and  the  Master  shall  settle  and 
sign  his  report,  and  cause  it  to  be  filed  in  the  proper  office, 
within  twenty  days  after  the  argument  on  such  objections  is 
closed.  If  no  objections  are  made  to  the  draft,  the  Master  shall 
file  his  report  in  the  praper  office  within  ten  days  after  the  time 
assigned  for  bringing  in  objections."* 

*JuLT  26Tn,  1842.  ' 

It  is  ordered  by  the  Chancellor,  that  the  50th  rule  [*x] 
of  the  Court  be  amended  so  as  to  read  as  follows: 

"Rule  50. 

'•  When  a  cause  is  at  issue  by  replication  to  a  plea  or  an- 
swer, either  party  may,  at  any  time  within  sixty  days  thereafter, 

*  Vide  Suydam  v.  Dequindre,  post  23. 


AMENDMENTS  TO  THE  EULES. 


enter  an  order  of  course,  and  give  notice  thereof  to  the  opj)Osite 
party,  for  the  taking  of  testimony  within  sixty  days  from  the 
service  of  notice  of  such  order;  and  either  party,  under  such 
order,  may,  at  any  time  within  the  said  sixty  days,  take  the 
testimony  of  his  witnesses,  upon  giving  ten  days'  notice  to  the 
opposite  party  of  the  names  and  places  of  abode  of  the  wit- 
nesses to  be  examined,  and  of  the  time  and  place  of  such  exam- 
ination, and  the  person  before  whom  the  same  will  be  taken. 
At  the  end  of  the  said  sixty  days,  either  party,  on  filing  an  affi- 
davit of  the  service  or  of  the  receipt  of  such  notice,  may  enter 
an  order  that  the  proofs  in  the  cause  be  closed. 

"  If  neither  party  shall  enter  an  order  for  the  taking  of  tes- 
timony and  serve  notice  thereof  on  the  opj)Osite  party,  within 
thirty  days  after  the  cause  is  at  issue  as  aforesaid,  the  cause 
shall  stand  for  hearing  on  bill,  answer,  and  replication,  and  may 
be  noticed  by  either  party." 

And  it  is  further  ordered  that  the  58th  rule  of  this  Court  be, 
and  the  same  is  hereby  abolished. 

March  31st,  1844. 
The  following  additional  rules  were  adopted: 

KULE  119. 

Any  application  for  the  appointment  of  a  special  guardian 
to  sell  the  real  estate  of  an  infant,  must  be  by  petition  of  the 

general  guardian  of  such  infant,  if  he  has  any;  and  if 
pxi]     he  has  no  guardian,  then  by  the  petition  of  the  ^infant 

himself,  if  of  the  age  of  fourteen  years  or  upwards,  or 
of  some  relative  or  friend  if  he  is  under  that  age.  The  petition 
must  be  verified  under  the  fourteenth  rule  of  the  Court,  must 
state  the  age  and  residence  of  the  infant,  tlie  situation,  value, 
and  annual  income  of  each  piece  or  parcel  of  real  estate  pro- 
posed to  be  sold,  and  the  circumstances  that  render  a  sale  ne- 
cessary or  proper.  It  must  also  state  the  name  and  residence 
of  the  proposed  guardian,  the  relationship,  if  any,  which  he 
bears  to  the  infant,  and  the  security  he  j^roposes  to  give;  and 
the  pro2)osed  guardian  must  give  his  assent  in  writing  at  the 
foot  of  the  petition. 


AMENDMENTS  TO  THE  RULES.  xi 

Rule  120. 

On  presenting  tlie  petition  to  the  Court,  an  order  may  be 
entered  referring  it  to  a  Master,  to  be  designated  in  the  order 
by  name,  to  ascertain  the  truth  of  the  facts  stated  in  the  peti- 
tion. The  Master  shall  take  proof  of  the  age  of  the  infant,  tlie 
value  of  the  infant's  interest  in  each  piece  of  real  estate  pro- 
posed to  be  sold,  and  of  the  circumstances  that  render  a  sale 
necessary  or  proper,  and  of  the  sufficiency,  under  the  121st  rule, 
of  the  sureties  offered  by  the  guardian,  or  of  the  land  proposed 
to  be  mortgaged  by  way  of  security,  which  proof  shall  be 
attached  to  his  report;  and  he  shall  in  his  report  certify  whether 
the  proposed  guardian  is  a  suitable  person  for  this  purpose,  the 
age  of  the  infant,  the  sufficiency  of  the  sureties,  the  penalty  of 
the  bond  required  to  be  given  by  the  guardian  under  the  said 
121st  rule,  the  value  of  each  piece  of  real  estate  proposed  to  be 
sold,  and  his  opinion  as  to  the  necessity  or  propriety  of  a  sale 
of  the  whole  or  any  part  thereof,  for  the  benefit  of  the  infant ; 
and  that  such  sale  will  not  be  against  the  provisions  of  any 
will  or  conveyance,  if  any,  by  which  such  real  estate  was  de- 
vised or  granted  to  such  infant;  and  if  he  is  not  satisfied  with 
the  person  named  as  guardian,  or  with  the  security  pro- 
posed, *he  may  name  a  suitable  person  as  guardian,  and  [*xii] 
state  what  other  or  further  security  should  be  given. 

Rule  121. 

The  guardian  must  give  a  bond,  with  two  sufficient  sureties, 
in  a  penalty  of  double  the  value  of  the  real  estate  to  be  sold, 
including  interest,  on  such  value  during  the  minority  of  the 
infant,  each  of  which  sureties  must  be  worth  the  penalt}^  of  the 
bond,  over  and  above  all  debts;  or  a  bond  of  the  guardian  only, 
secured  by  a  mortgage  on  unincumbered  real  estate,  of  the 
value  of  the  penalty  of  such  bond. 

Rule  122. 

To  every  commission  for  the  examination  of  witnesses  out 
of  the  State,  a  copy  of  this  rule  shall  be  annexed,  as  instructions 
to  the  commissioners  on  the  execution  of  the  commission. 

1st.  Any  one  of  the  commissioners  may  execute  the  commis- 
sion. 


xii  AMENDMENTS  TO  THE  EULES. 

2d.  The  witness,  before  lie  is  examined,  must  take  an  oatli 
or  affirmation,  to  be  administered  by  the  commissioner,  that 
the  answers  to  be  given  by  him  to  the  interrogatories  annexed 
to  the  commission,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth. 

3d.  Tlie  examination  of  the  witness  must  be  reduced  to 
WTiting  by  the  commissioner,  or  by  some  one  in  his  presence, 
and  under  his  directions;  and  must  be  signed  by  the  witness, 
and  certified  by  the  commissioner,  as  follows : 

"  Examination  taken,  reduced  to  writing,  and  sworn  to  (or 
affirmed)  this  day  of  ,  before  me,  A.  B.,  Com- 

missioner." 

4th.  Exhibits  must  be  annexed  to  the  deposition  of  the  wit- 
ness, and  be  signed  by  him  and  the  commissioner. 
5th.  The  commissioner  must  subscribe  each  sheet  of 
[*xiii]  *the  deposition,  annex  the  deposition  and  exhibits  to 
the  commission,  and  indorse  his  return  on  the  back  of 
the  commission. 

"The  execution  of  this  commission  appears  in  certain  sched- 
ules hereunto  annexed,"    A.  B.  Commissioner." 

6th.  The  commissioner  must  enclose  the  commission,  inter- 
rogatories, deposition,  and  exhibits,  in  a  packet,  and  bind  it 
with  tape,  and  set  his  seal  at  the  several  meetings  or  crossings 
of  the  tape,  and  direct  it — "  To  Eegister  of  the  Court 
of  Chancery  of  the  State  of  Michigan,  at ." 

7th.  He  must  then  deposit  the  commission  in  the  Post 
Office,  unless  there  are  written  directions  on  the  commission  to 
return  the  same  in  another  way. 

EuLE  123. 

The  Eegister,  on  the  commission  being  returned,  shall  open 
it,  and  indorse  thereon  the  time  and  manner  of  receiving  it. 

EuLE  124. 
No  deposition  will  be  suppressed  on  the  hearing  of  a  cause, 
for  irregularity  or  informality  in  the  taking  of  such  deposition, 
but  the  question  must  be  brought  before  the  Court  on  a  special 
motion  for  that  purpose,  before  the  cause  is  brought  to  a 
hearing. 


AMENDMENTS  TO  THE  RULES.  xiii 

March  2-4th,  1845. 

Ordered^  that  the  56th  rule  of  this  Court  be  amended,  so  as 
to  read  as  follows: 

Rule  56. 
"Documents,  which  are  of  themselves  evidence  without 
further  proof,  shall  not  be  read  on  the  hearing,  unless  they  have 
been  made  exhibits  before  the  Master  or  commissioner;  and  no 
deed  or  other  writing  shall  be  proved  at  the  hearing,  except  on 
an  order  previously  obtained,  after  due  notice  to  the  adverse 
party."* 

*Vide  Bacheldor  v.  Nelson,  post  449. 


CA.SES 

ARGUED  AND  DETERMINED 

IN  THE 

COURT  OF  CHANCERY 

FOR   THE 

STATE  OF  MICHIGAN. 


RANDOLPH   MANNING.    CHANCELLOR. 


Smith  &  Willaed  v.  Thompson. 

A  juclgment  creditor,  who  files  a  bill  to  have  his  judgment  satisfied  out  of 
choses  in  action  belonging-  to  his  debtor,  must  show,  1st,  A  judgment;  2d, 
An  execution  sued  out  on  such  judgment;  and  3d,  A  return  of  the  execu- 
tion unsatisfied  in  whole  or  in  part;  and  unless  these  facts  appear  affirma- 
tively in  the  bill,  this  court  has  no  jurisdiction  of  the  case.^ 

An  execution  cannot  be  legally  returned  until  the  return  day  thereof;  and 
whore  an  execution  was  returned  May  17th,  when  it  was  returnable  on  the 
18th,  the  return  was  held  to  be  insufficient  to  authorize  the  filing  of  a 
creditor's  bill.'^ 

An  execution  may  be  levied  at  any  time  on  the  return  day,  and  the  execution 
of  the  writ  be  completed  by  a  sale  of  the  property  after  that  day. 

^  See  Williams  v.  Hubbard,  j'^os/,  28;  Freeman  v.  Mich.  State  Bank,  ;post  02; 
Maynard  v.  Hoskins,  9  Mich.,  485;  Tyler  r.  Peatt,  30  id.,  68, 

For  exceptions  to  the  rule,  see  Beach  v.  Bestor,  45  111,  341,  S.  C.  47  id.,  521; 
Steere  v.  Hoagland,  39  id.,  264;  McDaniel  v.  Cochrane,  11  id.,  31 :  Bay  v.  Cook, 
31  id.,  336;  Newman  v.  Willett,  52,  id.,  98. 

*  See  Beach  v.  White,  post,  495;  Freeman  r.  Mich.  State  Bank,  jiost,  62. 

15 


CASES  IN  CHANCERY. 


Smith  V.  Thompson. 


This  was  a  motion  to  dissolve  an  injunction,  on  a  judg- 
ment creditor's  bill,  on  the  ground  that  the  execution  which 
was  returnable  May  ISth,  1841,  had  been  returned  by  the 
sheriff  on  the  seventeenth  day  of  that  month. 

Kingsly  <&  backus,  in  support  of  the  motion. 

G.  E.  Hand,  contra. 

The  Chancellor.  It  was  decided  by  this  Court,  first  in  the 
case  of  Thayer  v.  Swift,  Harr.  Ch.,  430,  and  afterwards  in 
Stafford  v,  Hulbert,  Harr.  Ch.,  435,  that  a  judgment 
[*2]  creditor's  bill,  could  not  be  ^sustained  where  the  execu- 
tion was  returned  unsatisfied  before  the  return  day 
named  in  the  writ;  although  the  bill  was  not  filed  until  after 
the  return  day. 

On  the  argument  of  the  present  motion,  however,  it  was 
insisted  that  these  cases  were  erroneously  decided  by  my  pre- 
decessor, and  should  therefore  be  overruled ;  and  the  Court  was 
referred  to  a  newspaper  report  of  a  case  recently  decided  in 
the  Court  of  Chancery  of  the  State  of  New  York,  from  whicl: 
it  would  seem  a  different  decision  has  been  made  by  the  Chan- 
cellor of  that  State.  The  grounds  upon  which  this  decision 
was  based  do  not  appear  in  the  report  of  the  case;  and,  after 
having  given  considerable  attention  to  the  subject,  I  can  see  no 
good  reason  for  doubting  the  correctness  of  the  decision  of  this 
Court,  in  the  cases  above  referred  to. 

A.  judgment  creditor  who  files  a  bill  in  this  Court,  to  have 
his  judgment  satisfied  out  of  choses  in  action  belonging  to  the 
debtor,  must  show,  1st,  A  judgment;  2d,  An  execution  sued 
out  on  such  judgment;  and  3d,  A  return  of  the  execution  un- 

See,  however,  First  Nat.  Bank  v.  Gage,  79  111.,  207;  Lewis  v.  Lanphere, 
i1.,  187. 

A  return  on  the  return  day  Avill,  however,  be  sufficient.  WUliams  v.  Hub- 
bard, 1  Mich.,  446. 

So,  where  to  an  execution  against  two  defendants,  the  sheriff  returned  that 
they  had  no  goods  or  chattels,  etc.,  without  in  terms  negativing  the  fact  that 
neither  of  the  defendants  had,  it  was  held  that  the  return  was  sufficient. 
Williams  v.  Hubbard,  miwa. 

16 


FIRST  CIRCUIT,  APRIL,  1812. 


Smith  r.  Thompson. 


satisfied  in  whole  or  in  pai-t.  Unless  these  facts  appear  affirm- 
atively in  the  bill,  the  Court  has  no  jurisdiction  of  the  case. 
The  complainant  must  show  he  has  in  good  faith  exhausted  his 
remedy  at  law,  without  producing  a  satisfaction  of  his  debt. 
All  the  Legislature  intended  by  the  statute  giving  jurisdiction 
to  this  Court  in  this  class  of  cases,  was  to  give  the  creditor  a 
remedy  in  this  Court,  after  he  had  exhausted  his  remedy  at 
law,  where  the  debtor  had  choses  in  action,  or  other  property, 
which  an  execution  could  not  reach,  and  which  ought,  in  jus- 
tice and  equit}^,  to  be  applied  by  him  in  payment  of  the  judg- 
ment. 

Is  the  return  of  the  officer  to  the  execution  in  the  present 
case  a  good  return,  or  such  a  return  as  shows  the  complain- 
ants have  exhausted  their  legal  remedy?  If  it  is  not, 
*the  complainants  cannot  sustain  their  bill,  ajid  the  in-  [*3] 
junction  must  be  dissolved.  An  execution  may  be  levied 
at  any  time  on  the  return  day,  and  the  execution  of  the  writ  be 
completed  by  a  sale  of  the  property  after  that  day.  Devoe  v. 
Flliott,  2  C.  R.  243,  2  Burr,  812;   1  T.  R.  192,  R.  S.  452,  §  14. 

Now  the  sheriff's  return  does  not  show  the  defendant  had 
not  property  on  which  he  might  have  levied,  on  or  before  the 
return  day  of  the  execution.  This  should  appear  from  the 
officer's  return  in  order  to  give  this  Court  jurisdiction;  and 
unless  it  does  so  appear,  the  return  itself  is  insufficient.  In 
Cavenatigh  v.  Collett,  4.  Barn.  &  Aid.  279,  (S.  C.  6  Eng. 
Com.  Law  Rep.  425,)  where  the  retiirn  of  the  officer  stated  the 
defendant  was  insane,  and  could  not  be  removed  without 
danger  to  his  life,  when  the  officer  went  to  arrest  him;  without 
adding  that  he  continued  so  to  the  return  of  the  writ;  it  was 
held  to  be  bad  on  that  account.  In  Palmer  v.  Patten,  Cro. 
Eliz.  512,  it  was  held  that  the  sheriff  should  not  accept  a 
return  of  nulla  lona  from  a  bailiff"  before  the  return  day  of 
the  writ,  as  the  defendant  might  after  such  return,  and  before 
the  writ  was  returnable,  have  property  to  satisfy  it.  The 
return  of  the  execution  then  on  the  17th  May,  instead  of  the 
18th,  when  it  Wiis  returnable,  was  an  insufficient  return;  and 
an  insufficient  return  is  as  no  return,  or  not  such  a  return  as 

Vol.  1.— 2  17 


CASES  IN  CHANCERY. 


Smith  V.  Thompson. 


will  protect  the  officer  against  an  attacliment  for  not  making  a 
correct  return.  Watson^s  Sheriff  T6;  Bex  v.  Sheriff  of 
Middlesex,  1  Barn.  &  Aid.  190.  If  the  sheriff  had  returned  the 
execution  unsatisfied,  for  the  want  of  goods  and  chattels,  with- 
out making  any  mention  of  lands  and  tenements,  such  a  return 
would  not  have  been  sufficient  to  give  this  Court  jurisdiction ; 
nor  can  a  return  be  so  which  is  in  any  other  respect  defective, 
in  not  showing  a  want  of  goods  and  chattels,  lands  and 
[*-i]  tenements,  belonging  to  the  ^debtor,  within  the  baili- 
wick of  the  sheriff,  out  of  which  the  money  might  have 
been  made  by  him,  within  the  time  allowed  for  that  purpose  by 
the  execution.  One  day  in  the  return  of  the  execution,  it  was 
said  on  the  argument,  would  make  no  difference.  If  one  day 
cannot,  how  many  shall?  Must  it  be  two,  or  twenty,  or  some 
other  number?  But  this  is  not  the  question.  The  question  is, 
whether  the  Court  can  disregard  the  law,  which  requires  an 
execution  to  be  taken  out  and  returned  unsatisfied  in  whole  or 
in  part,  before  the  judgment  creditor  shall  have  relief  in  this 
Court.  If  the  Court  can  dispense  with  a  good  and  sufficient 
return  to  the  execution,  might  it  not  dispense  with  the  execu- 
tion entirely,  and  assume  a  jurisdiction  not  given  by  law?  The 
cases  supposed  are  the  same  in  principle,  and  differ  in  degree 
only.  In  Cassidy  v.  Meacham,  3  Paige  311,  and  Steward  v. 
Stevens,  1  Har.  Ch.  Rep.  169,  it  was  decided  a  creditor's  bill 
could  not  be  filed  nntil  after  the  return  of  the  execution.  In 
these  cases,  the  execution  was  returned,  and  the  complainant's 
bill  filed  before  the  return  day.  It  was  stated  by  the  Court,  in 
both  cases,  that  an  execution  could  not  be  considered  as  legally 
returned  unsatisfied,  until  the  return  day,  and,  for  that  reason 
it  w^as  held  the  creditor  could  not  file  his  bill  until  after  that 
day.  If  the  execution  could  not  be  considered  as  legally  re- 
turned before  the  return  day,  it  follows  that  a  return  made 
before  that  time  would  not  be  a  good  return,  aiid  so  it  must 
have  been  considered  by  the  Court,  in  both  of  these  cases.  I  can 
see  no  other  principle  on  which  these  cases  can  be  sustained; 
for,  if  the  return  of  the  execution  unsatisfied,  before  the  return 
day,  is  a  good  return,  the  creditor  had  a  right  under  the  stat- 
18 


FIRST  CIRCUIT,  APRIL,  1842 


Bergh  v.  Poupard. 


ute,  at  any  time  thereafter,  to  file  liis  bill  without  waiting  till 
the  return  clay  of  the  execution.     The  statute  does  not 
require  him,  after  his  *execution  has  been  returned  unsat-      p5] 
isfied,  to  *vait  any  length  of  time  whatever  before  he 
files  his  bill. 

The  statute  (R.  S.  451  §8)  which  says:  "The  officer  to 
whom  any  execution  shall  be  directed,  shall  return  such  writ 
to  the  Court  to  which  the  same  is  returnable,  (on)  or  before  the 
first  day  of  the  term  to  which  such  writ  is  made  returnable," 
makes  it  the  duty  of  the  officer,  when  the  writ  has  been  exe- 
cuted, to  return  it  forthwith  without  waiting  the  return  day; 
but  in  no  other  case.  The  officer  has  no  right  to  retain  the 
money  after  it  iias  been  collected. 

The  injunction  in  this  case  must  be  dissolved. 


Bergh  &  Arcularius  v.  Poupard  &  Beaubien. 

Where  a  judginent  creditor's  bill  is  verified  under  the  110th  rule,  by  the  com- 
plainant's ag-ent,  who  is  not  also  solicitor  of  the  complainant,  the  jufat 
should  state  the  person  verifying  to  be  the  agent  of  the  complainant;  but 
•where  it  is  verified  by  the  oath  of  the  complainant's  solicitor,  the  Court  will 
take  notice  of  that  fact  from  the  records  and  proceedings  in  the  cause. 

This  was  a  motion  for  the  appointment  of  a  Receiver  on  a 
judgment  creditor's  bill.  The  motion  was  opposed,  on  the 
ground  that  the  jurat  did  not  state  the  person  verifying  the 
bill,  to  be  the  agent,  or  attorney  of  the  complainants. 

Douglass  <&  Walker,  for  the  complainants. 

Van  Dyke  &  Harringtoji,  for  the  defendants 

The  Chancellor.    The  110th  rule  of  the  Court  requires  bills 
of  this  description  to  be  verified  by  the  oath  of  the  ''^com- 
plainant, or  in  case  of  his  absence  from  the  State,  or      ['^6] 
other  sufficient  cause  shown,  by  the  oath  of  his  agent  or 

19 


CASES  IN  CHANCERY. 


Albany  City  Bank  v.  Steevens. 


attorney.  Where  the  bill  is  verified  bj  the  complainant's 
agent,  who  is  not  also  the  solicitor  of  the  complainant,  the 
jurat  should  state  the  person  verifying  to  be  the  agent  of  the 
complainant;  but  where,  as  in  the  present  case,  it  is  verified 
bj  the  oath  of  the  complainant's  solicitor,  the  Court  will  take 
notice  of  that  fact  from  the  record  and  proceedings  in  the 
cause. 

The  motion  must  be  granted. 


Albany  City  Bank  v.  Fkederick  H.  Steevens  et  al. 

The  petition  under  the  117th  section,  (R.  S.  376,)  should  set  forth  briefly  all 
the  facts  necessaiy  to  enable  the  mortgagor,  as  well  as  the  Court,  to  under- 
stand its  object, 

A  copy  of  the  petition,  with  a  notice  of  the  time  of  presentation  to  the  Court, 
must  be  served  on  the  mortgagor,  in  order  to  afford  him  an  opportunity  to 
show  cause  why  the  prayer  of  the  petition  should  not  be  granted.  , 

TVhei'e  the  service  cannot  be  made  on  the  mortgagor,  by  reason  of  his  absence 
from  the  State,  it  may  be  made  on  his  solicitor. 

A  copy  of  the  petition  need  not  be  served  on  defendants  made  parties  as  sub- 
sequent incumbrancers.^ 

This  was  a  motion  to  confirm  a  Master's  report  of  sale  for  an 
installment  of  interest  due  on  a  mortgage,  and  also  for  a  further 
order  to  sell,  for  the  principal,  which  had  since  become  due.  It 
appeared  that  a  decree  had  been  entered  December  7th,  1840, 
for  the  sum  of  $3821.99,  being  the  amount  of  interest  then  due 

on  the  mortgage;  that  January  16th,  1812,  the  principal 
[■••7]      fell  due;  that  April  6th,  1842,  an  -order  was  entered 

with  the  register,  referring  it  to  a  Master  to  ascertain  and 
compute  the  amount  of  principal  and  interest  due  on  the  mort- 
gage; that  on  the  8th  day  of  April  a  part  of  the  mortgaged 
premises  were  sold  to  satisfy  the  decree  for  interest.     That  on 

*As  to  the  nature  of  the  proceeding  for  a  further  decree  for  an  additional 
installment,  see  Brown  v.  Thompson,  29  Mich.,  72. 
20 


FIRST  CIRCUIT,  APRIL,  1842. 


Albany  City  Bank  v.  Steevens. 


the  coming  in  of  the  Master's  report  of  sale  and  also  of  the 
amount  due  on  such  reference,  the  complainants  moved  for  a 
confirmation  of  the  report,  and  at  the  same  time  presented  their 
petition,  a  copy  of  which  had  been  served  on  the  solicitors  of 
the  mortgagor,  stating  that  the  whole  amount  of  the  princijDal 
sura  secured  by  the  bond  and  mortgage  had  become  due,  and 
that  there  was  then  due,  as  appeared  by  the  report  of  the  Master, 
the  sum  of  $26,670.50  as  principal  and  interest  since  the  decree, 
and  asked  for  a  future  or  supplemental  order  to  sell  so  much  of 
the  mortgaged  premises  remaining  unsold,  as  should  be  neces- 
sary to  pay  the  amount  then  due. 

Barstow  c&  Zockwood,  in  support  of  the  motion. 
A.  D.  J^raser,  contra 

The  Chancellor.  The  Revised  Statutes  (page  378,  §  117) 
provide,  where  there  is  a  default  subsequent  to  the  decree  in  the 
payment  of  any  portion  or  installment  of  the  principal,  or  of 
the  interest  due  upon  the  mortgage,  the  Court  may,  on  the 
petition  of  the  complainant,  by  a  further  order  founded  upon 
the  first  decree,  direct  a  sale  of  so  much  of  the   morterased 

'  DO 

premises  to  be  made,  under  the  decree,  as  will  be  sufiicient  to 
satisfy  the  amount  so  due,  with  the  costs  of  such  petition  and 
the  subsequent  proceedings  thereon;  and  that  the  same  pro- 
ceedings maybe  had  as  often  as  a  default  should  happen.  The 
petition  under  this  statute  should  set  forth  briefly  all  the  facts 
necessary  to  enable  the  mortgagor,  as  well  as  the  Court, 
to  ^understand  its  object.  It  should  state  when  the  bill  [*8] 
was  filed  the  date  of  the  decree,  and  the  amount  that 
had  become  due  upon  the  mortgage  since  that  time;  and  that 
the  whole  or  some  part  thereof  remained  unpaid. 

A  copy  of  the  petition,  with  a  notice  of  the  time  it  will  be 
presented  to  the  Court,  should  be  served  on  the  mortgagor,  in 
order  to  afford  him  an  opportunity  to  show  cause  why  the  prayer 
of  the  petition  should  not  be  granted ;  and  if  no  cause  is  shown, 
the  petitioner  will  be  entitled  to  an  order  of  reference  to  a 
Master  to  compute  the  amount  due,  and  on  the  coming  in  of 

21 


CASES  IN  CHAIS^CEEY. 


Michigan  State  Bank  v.  Hastings. 


the  Master's  report,  to  such  further  order  as  the  case  may  re- 
quire. Where  service  cannot  he  made  on  the  mortgagor,  by 
reason  of  his  absence  from  the  State,  it  may  be  made  on  his 
solicitor.  A  copy  of  the  petition  need  not  be  served  on  subse- 
quent incumbrancers  who  are  made  parties  to  the  suit.  Decrees 
in  this  class  of  cases  are  analogous  to  judgments  at  law  for  the 
penalty  of  a  bond,  where  the  plaintiff  is  required  to  proceed  by 
scire  facias  to  have  damages  assessed  on  a  breach  occurring 
after  the  rendition  of  the  judgment.  The  reference  to  the 
Master  in  this  case  to  compute  the  amount  which  had  become 
due  since  the  decree,  was  irregular,  as  it  was  made  without  a 
special  order  of  the  Court  for  that  purpose,  and  the  petition 
should  have  been  served  on  the  mortgagor  instead  of  the  solic- 
itor. 

So  much  of  the  Master's  report  as  relates  to  the  reference 
made  on  the  6th  instant,  cannot  be  confirmed,  and  the  prayer 
of  the  petitioners  must  be  denied.  But  that  part  of  the  report 
which  relates  to  the  sale  of  a  part  of  the  mortgaged  premises, 
may  be  confirmed. 


[*9]  "^The  President,  Dihectors  and  Company  of 
THE  Michigan  State  Bank  v.  Eurotas  P. 
Hastings.^ 

On  a  motion  for  an  injunction,  tlie  statements  in  tlie  bill  must  be  taken  as 
time;  and  the  relief  sought  must  be  consistent  with  the  case  made  by  the 
bill. 

The  possession  of  State  property  by  the  authorized  agents  and  officers  of  the 
State,  is  the  possession  of  the  State. 

A  State  may  sue,  but  it  cannot  be  sued  in  its  own  courts;  and,  where  the 
nominal  defendant  was  the  late  Auditor-General  of  the  State,  and  the  com- 
plainants' bill  souglit  to  reach  property  conveyed  to,  and  held  by  him,  in 
his  official  capacity,  it  was  held,  that  the  State  was  the  real  party  defend- 
ant, and  that  the  Court  had  no  jurisdiction  of  the  case.'' 

1 S.  C,  1  Doug.,  225.     See,  also,  id.,  527. 

*  The  rule  that  a  State  cannot  be  sued  in  its  own  courts  is  applicable  only 
22 


FIRST  CIRCUIT,  APRIL,  1842.  10 

Michigan  State  Bank  v.  Hastings. 

Tins  was  an  application  for  an  injunction.  The  bill  stated 
that,  in  ISo'J,  and  previous  thereto,  the  complainants  were 
indebted  to  the  State  of  Michigan,  in  the  sum  of  §500,000,  or 
thereabouts;  and  that,  in  February  of  that  year,  the  bank  be- 
came embarrassed,  and  stopped  payment.  That  in  February, 
1840,  the  legislature  passed  an  act  authorizing  the  Auditor 
General,  State  Treasurer,  and  Secretary  of  State,  to  settle  with 
the  bank,  and  appointing  them  commissioners  for  that  pur- 
pose. That  tlie  bank  refused  to  settle  until  the  forfeiture  of 
their  charter  should  be  remitted ;  and  that,  on  the  twenty-eighth 
day  of  March,  1841,  an  act  was  passed  by  the  legislature,  de- 
claring that  if  the  bank  should  settle  with  the  commissioners 
under  the  law  before  mentioned,  and  should  resume  specie  pay- 
ments on  or  before  the  first  day  of  April,  1841,  then  nothing 
done  or  suffered  by  the  bank  previous  to  that  act,  should  in 
any  way  aflect  their  chartered  privileges.  That,  on  the  first 
day  of  May,  1841,  the  bank  settled  with  the  commissioners, 
agreeably  to  the  provisions  of  the  act  of  February  of  that 
year,  and  assigned,  transferred,  delivered,  *and  set  [*10] 
over  to  them,  in  payment  of  the  debt  due  to  the  State, 
bills,  notes,  accounts,  lands,  and  other  property,  amounting  to 
§633,567.98.  That  an  instrument  by  which  the  assignment 
was  made,  and  which  set  forth  the  terms  or  conditions  of  the 
settlement,  was  executed  by  the  commissioners  on  the  part  of 
the  State,  and  by  the  president  of  the  bank  on  behalf  of  the  cor- 
poration, whereby  the  commissioners  acquitted  and  discharged 
the  complainants  from  all  claims,  dues  and  demands,  which 
the  State  had  against  the  bank;  and  the  assignment  of  the 
property  and  effects  contained  in  the  schedule  annexed  to  said 
instrument,  was  stated  to  l)e  made  u]X)n  the  express  condition, 
that  the  State  should  indemnify  and  save  harmless  the  com- 
plainants and  their  grantors,  immediate  and  remote,  from  and 
against  the  several  liabilities  stated  in  said  agreement.     That, 

where  the  State  is  made  a  party  defendant,  and  does  not  apply  where  the 
object  of  the  suit  is  to  reach  property  held  by  State  officers,  in  which  the 
State  has  ceased  to  have  any  legal  interest.  S.  C,  1  Doug.,  225;  ]\IiL'higan 
State  Bank  r.  Hammond,  id.,  527. 

23 


11  CASES  m  CHANCERY. 

Michigan  State  Bank  v.  Hastings 

among  tliose  liabilities  was  a  certain  bond  and  mortgage  on 
their  banking-lionse  and  lot,  executed  by  the  complainants  to 
the  Bank  of  Michigan,  (which  banking-house  and  lot  were,  at 
the  same  time,  conveyed  to  the  Auditor  General,  subject  to  said 
mortgage,)  on  which  there  was  then  remaining  unpaid  the 
principal  sum  of  $11,250. 

The  bill  then  charged,  that  the  State  had  realized  a  large 
amount  of  money  from  the  property  so  transferred;  that  this 
money  had  gone  into  the  State  treasury ;  that  the  State  had  not, 
by  any  legislative  action,  repudiated  the  settlement,  and  that 
it  had  taken  no  measures  to  indemnify  and  save  harmless  the 
complainants  from  said  bond  and  mortgage,  and  other  liabili- 
ties mentioned  in  the  indenture.    That,  on  the  seventeenth  day 
of  February,  1S42,  the  legislature  passed  an  act  constituting  the 
Auditor  General,  State  Treasurer  and  Secretary  of  State,  trus- 
tees, on  behalf  of  the  State  to  take  charge  of  the  assets  and 
property  assigned  to  the  State,  and  sanctioning  the  agree- 
['^11]    ment  entered  *  into  between  the  bank  and  the  commis- 
sioners, except  so  much  thereof  as  purported  to  bind  the 
State  to  indemnify  the  complainants,  or  to  pay  or  advance 
money  to  discharge  incumbrances,  or  for  any  other  purpose; 
and   these  parts  of  said  agreement  were   expressly  rejected. 
That  the  act  also  authorized   the  trustees  to  sell  or  lease  said 
property,  and  to  collect,  compromise  or  extend  the  time  of  pay- 
ment of  the  debts  assigned,  in  the  best  manner  possible  for  the 
interest  of  the  State;  and  to  pay  all  moneys  collected  into  the 
State  treasury,  for  the  redemption  of  State  scrip.     That  the 
.  State  ha<i  not  paid  the  bond  and  mortgage  given  to  the  Bank 
of  Michigan,  but  had  permitted  the  same  to  be  foreclosed,  and 
the  mortgaged  property  to  he  sold  at  a  great  sacrifice  for  much 
below  its  real  value;  and  that  it  had  refused  to  pay  off  and  sat- 
isfy the  balance  still  due  on  said  bond,  amounting  to  $7,000, 
for  which  the  complainants  had  been  threatened  with  a  suit. 

The  bill  charged,  also,  that  the  State  was  insolvent  and  un- 
able to  pay  its  debts;  that  much  of  the  property  had  been 
permitted  to  become  worthless  through  inattention;  that  the 
settlement  could  not  be  set  aside  or  repudiated  by  comjjlain- 

24 


FIEST  CIECUIT,  APEIL,  1842.  12 

]\Iichigan  State  Bank  v.  Hastings. 

ants,  because  it  was  beyond  tlie  power  of  tlie  State  to  yjlace 
the  complainants  in  tlie  situation  they  were  in  when  the  set- 
tlement was  made;  and  that  a  large  amount  of  the  property  so 
assigned  by  the  complainants,  still  remained  in  the  hands  of 
the  defendant,  who  was  one  of  the  commissioners. 

The  bill  prayed  for  an  injunction  against  the  defendant,  to 
inhibit  the  delivery  of  the  property  in  his  possession  to  the 
trustees  of  the  State;  and  that  the  defendant  might  be  de- 
clared a  trustee  for  the  complainants;  and  that  he  might  be 
directed  to  sell  and  dispose  of  the  property,  and  pay  off  the 
said  bond  and  mortgage,  and  other  liabilities  of  the  comjjkain- 
ants. 

*Joy  <&  Porter,  in  support  of  the  motion.  [*12] 

Pratt,  Morey  and  Atto7'ney-General,  contra. 

The  Chancellor.  The  complainants'  bill,  for  the  pui-pose 
of  the  present  motion,  must  be  taken  to  be  true;  and  the  relief 
to  which  they  are  entitled,  if  any,  must  be  consistent  with  the 
case  made  by  the  bill.  Wilhins  v.Wilkins,  1  J.  C.  K.,  111. 
The  complainants  claim  relief  on  the  ground  that  the  settle- 
ment made  between  the  bank  and  State,  on  the  first  of  May, 
1840,  is  binding  on  the  State;  and  that  the  State  has  not  com- 
plied with  the  conditions  on  which  the  settlement  was  made,  by 
paying  off  the  bond  and  mortgage  on  the  banking  house  and 
lot,  and  the  other  liabilities  of  the  complainants  against  which 
it  was  to  indemnify  them  by  the  terms  of  the  settlement.  And 
they  allege  that  the  mortgage  had  been  foreclosed,  and  the  prop- 
erty sold  at  a  great  sacrifice;  and  that  there  is  still  a  balance 
unpaid  of  $7,000,  for  which  they  have  been  threatened  with  a 
prosecution;  that  the  State  has  received  large  sums  of  money, 
from  the  property  assigned  to  it  by  the  complainants,  and  that 
such  money  has  gone  into  the  treasury  of  the  State,  and  been 
used  for  other  purposes  than  to  pay  off  the  liabilities  of  the 
complainants;  and  that  the  State  is  insolvent,  and  unable  to 
pay  its  debts. 

This  is  the  substance  of  the  complainants'  bill ;  and  they  ask 

25 


13  CASES  IN  CHANCERY. 

Michigan  State  Bank  v.  Hastings. 

an  injunction  against  tlie  defendant,  to  prevent  him  from  de- 
livering over  tlie  property  to  tlie  trustees  appointed  by  the 
State  to  take  charge  of  the  same;  and  that  he  may  be  declared 
a  trustee  for  the  benefit  of  the  complainants,  and  be  directed  to 
sell  and  dispose  of  the  property,  and  to  pay  ofi"  the  liabilities 
against  which  the  State  agreed  to  indemnify  them. 

On  this  statement  of  facts,  two  questions  present 
[*13]  ^themselves:  i^/?'«^,  whether  the  present  suit,  although 
instituted  against  Mr.  Hastings,  is  not  in  fact  a  suit  against 
the  State  to  compel  the  performance  of  a  contract  by  the  State ; 
and  if  it  is,  then  Second^  whether  the  Court  has  jurisdiction  of 
the  case. 

The  complainants'  bill  is  based  on  the  validity  of  the  settle- 
ment. By  the  settlement,  the  property  now  in  the  possession 
of  Mr.  Hastings  was  assigned  and  delivered  by  the  complain- 
ants to  the  State;  for  the  delivery  of  it  to  the  commissioners, 
or  to  Mr.  Hastings,  (who  was  one  of  them)  was  a  delivery  of  it 
to  the  State  itself.  The  complainants'  interest  in  the  property, 
when  it  was  assigned  and  delivered  by  them  to  the  commission- 
ers, vested  in  the  State;  and  must  still  be  in  the  State,  unless  it 
lias  parted  with  that  interest;  which  is  not  the  case  in  the  pres- 
ent instance.  This  suit,  then,  is  nominally  a  suit  against  Mr. 
Hastings,  but  in  reality  a  suit  against  the  State;  as  its  object  is 
to  have  State  propej'ty  applied  in  payment  of  what  is  alleged  to 
be  a  State  debt,  or  a  debt  the  State  is  bound  to  pay.  Has  this 
court,  then,  jurisdiction  of  the  case?  A  State  may  sue,  but  it 
cannot  be  sued  in  its  own  courts,  unless  there  is  some  statute 
giving  the  Court  jurisdiction  in  express  terms;  and  then  it 
must  be  strictly  pursued.  If  the  State  could  be  sued  like  an 
individual,  and  judgment  obtained,  and  an  execution  taken  out, 
and  its  property  levied  on,  and  sold,  great  evils  would  be  likely 
to  result  to  the  public  from  such  a  course ;  and  serious  obstacles 
miglit  be  interposed  to  the  administration  of  the  government 
itself.  It  will,  therefore,  hardly  be  contended  that  this  Court 
has  jurisdiction  of  a  case  like  the  present,  where  the  complain- 
ants ask  the  interposition  of  the  Court  on  a  statement  of  facts, 
which  shows  that  the  State,  and  not  the  defendant,  is  the  party 

26 


FIRST  CIECUIT,  APRIL,  1842.  U 

Michigan  State  Bank  v.  Hastings. 

in  interest.  The  case  of  Osbovii  v.  Bank  of  United 
States,  9  Wheat.  E.  738,  which  the  counsel  for  *com-  pl-i] 
plainants  cited,  on  the  argument  as  decisive  upon  the 
question  of  jurisdiction,  is  not  applicable.  The  Bank  of  the 
United  States,  in  that  case,  did  not  file  their  bill  against  Osborn 
and  others  to  compel  the  performance  of  a  contract  between  the 
bank  and  the  State;  but  to  inhibit  the  execution  of  an  uncon- 
stitutional act  of  the  legislature,  by  the  officers  of  the  State; 
and  to  obtain  the  restitution  of  property  which  had  been  taken 
by  those  officers,  without  authority  of  law,  under  that  act. 

The  motion  must  be  denied;  and  the  provisional  injunction 
heretofore  granted,  until  the  motion  could  be  heard  and 
decided,  is  dissolved 

Motion  denied. 

Note.  The  bill  was  afterwards  amended,  by  making  the  Auditor- General, 
State  Treasurer,  and  Secretary  of  State,  parties,  who  put  in  a  demurrer,  on 
which  the  bill  was  dismissed;  and  an  appeal  was  taken  to  the  Supreme  Court, 
where  the  decree  dismissing  the  bill  was  affirmed,  but  on  a  different  ground 
from  that  taken  by  the  Chancellor;  the  Supreme  Court  holding  the  Chancellor 
had  jurisdiction  of  the  case,  and  consequently  that  it  was  competent  for  him 
to  have  given  relief  against  the  State,  if  complainants  had  made  out  a  proper 
case  by  their  bill;  that  is,  had  shown  themselves  damnified  by  being  com- 
pelled to  pay  off  the  bond  and  mortgage  which  the  commissioners  had  agreed 
the  State  should  pay.  And  Osborn  v.  The  Bank  of  the  United  States,  9 
Wheat.  R.  733,  noticed  by  the  Chancellor  in  the  concluding  part  of  his  opin- 
ion, was  relied  on  by  the  Supi'eme  Court,  to  show  the  jurisdiction  of  the 
Chancellor.  They  appear,  however,  to  have  overlooked  the  broad  distinction 
between  the  two  cases,  viz:  that  one  was  a  case  of  tort,  and  the  other  of  con- 
tract. They  admitted  the  State  could  not  be  sued,  and  yet  held  the  Court  had 
jurisdiction  to  enforce  a  contract  against  the  State,  in  a  suit  to  which  the 
State  was  not  so  much  as  a  party.  In  Osborn  v.  The  Bank  of  the  United 
States,  the  bank  sought  relief  on  the  ground  that  the  act  of  the  legislature, 
under  which  the  officers  of  the  State  had  acted,  was  unconstitutional  and  void; 
and  on  that  ground,  and  no  other  obtained  relief.  The  acts  of  a  State  officer, 
when  unauthorized  by  the  constitution  and  laws  of  the  State,  though  done  in 
the  name  of  tlie  State,  are  his  individual  acts,  for  which  he  alone,  in  his  indi- 
vidual capacity,  and  not  the  State,  is  responsible.  Such  acts  are  the  incli\-id- 
ual  acts  of  the  person;  and  not  of  the  officer  in  his  official  capacity,  or  of  the 
State.  While,  in  the  case  before  them,  relief  was  asked  on  the  ground  of  a 
contract  withthe  State,  which  contract  it  was  insisted  was  good  and  binding  on 

27 


15  CASES  IN  CHANCERY. 

Wixom  V.  Davis. 

the  State,  and  should  therefore  be  performed  by  the  State.  The  two  cases 
were  as  dissimilar  as  any  two  cases  well  could  be.  The  Court  say  in  the  case, 
in  Wheaton:  "  The  State  not  being  a  party  on  the  record,  and  the  Court  hav- 
ing jurisdiction  over  those  who  are  parties  on  the  record,  the  true  question  is, 
not  one  of  jurisdiction,  but  whether,  in  the  exercise  of  its  jurisdiction, 
[*15]  the  C  ourt  ought  to  make  against  the  defendants,  whether  they  *are  to 
he  considered  as  having  a  real  interest,  or  as  being  only  nominal  parties."' 
*  *  *  *  "  This  question  has  already  been  considered.  The  responsibihty 
of  the  officers  of  the  State  for  the  money  taken  out  of  the  bank,  was  admitted, 
and  it  was  acknowledged  that  this  responsibihty  might  be  enforced  by  the 
proper  action."  In  that  case,  the  defendants  were  real,  not  nominal  parties. 
They  were  liable  and  might  have  been  sued  at  law  for  the  trespass.  But  Mr. 
Hastings,  against  whom  the  biU  was  first  filed,  had  no  interest  in  the.  contract 
between  the  State  of  Michigan  and  the  bank.  The  bank  could  not  have  sus- 
tained an  action  on  the  contract  against  him  at  law.  He  was  not  at  the  time 
so  much  as  an  officer  of  the  State;  and  the  bill,  with  as  much  propriety, 
might  have  been  filed  against  any  other  person  who  happened  at  the  the  time 
to  be  in  possession  of  any  part  of  the  property.  The  difficulty  was  not  cured 
by  making  the  State  officers  parties.  C. 

See  the  statements  in  this  note  corrected  in  Michigan  State  Bank  v.  Ham- 
mond, 1  Doug.,  527. 


Isaac  Wixom  v.  Delos  Davis  et  al. 

The  ignorance  of  a  party  of  his  defense  at  law  is  not  a  sufficient  reason  to 
warrant  the  Court  in  interfering  with  a  judgment,  wliere  such  ignorance  is 
connected  with  negligence,  and  might  have  been  removed  by  the  use  of 
ordmary  means  to  obtain  the  necessary  information. 

This  was  a  motion  to  dissolve  an  injunction. 

The  complainant's  bill  stated,  that  one  Cook  of  the  town  of 
Farmington,  Oakland  county,  in  which  town  the  complainant 
resides,  in  February  1838,  applied  to  the  defendant  Davis,  of 
the  city  of  Detroit,  for  a  loan  of  money,  and  received  $700,  in 
the  bills  of  the  Farmers'  Bank  of  Genesee,  and  the  Bank  of 
Sandstone,  institutions,  nominally  and  professedly,  banks  under 
the  general  banking  law  of  the  State,  but  which  were,  in  reality, 
instituted  for  purposes  of  fraud,  and  to  give  circulation  to  bills 
28 


FIEST  CIRCUIT,  JUNE,  1842.  16 

Wixom  V.  Davis. 

of  no  value;  and  that  Davis  knew  these  facts,  and  had  pro- 
cured these  bills  for  the  purpose  of  defrauding  such  persons  as 
might  come  into  the  possession  of  them.  That  Davis  was,  in 
some  way,  connected  with  the  Farmers'  Bank  of  Gene- 
see, *or  with  those  who  were  its  originators,  and  had  got  ["16] 
from  it  a  large  quantity  of  its  bills,  for  which  he  had 
given  little  or  no  security;  and  that  he  knew  when  he  paid 
them  to  Cook,  that  they  were  worthless,  and  that  he  was  acting 
fraudulently  in  giving  circuhition  to  them.  To  secure  the  pay- 
ment of  the  $700,  Cook  gave  his  promissory  note  to  Davis,  pay- 
able in  three  months,  and  indorsed  by  complainant  and  two 
others.  About  three  weeks  afterwards  tlie  Bank  of  Genesee 
failed,  and  its  bills  became  worthless,  and  strong  imputations 
of  fraud  were  made  against  all  concerned  with  it;  and,  in  the 
charges  growing  out  of  its  failure,  Davis  was  implicated,  and, 
immediately  thereafter,  left  the  State.  Cook  went  to  Detroit, 
and  found  the  $700  note  in  possession  of  Davis's  agent,  and, 
being  assured  the  bank  would  ultimately  pay  its  liabilities,  he 
paid  $550  on  it,  and  agreed  to  give  a  note  for  $150;  which  he 
afterwards  did,  on  the  first  of  March  of  the  same  year.  This 
last  note  was  indorsed  by  the  complainant,  who  was  ignorant, 
at  the  time,  of  the  circumstances  under  which  it  was  given. 
The  bank  proved  to  be  utterly  insolvent;  and  Cook  did  not 
receive  for  its  bills  over  twelve  per  cent. 

The  complainant's  bijl  then  charged,  that  the  note  for  $150 
was  given  without  any  consideration,  and  that  the  w^iole  trans- 
action was  a  fraud  on  Cook  and  the  complainant.  That,  on  the 
fourth  day  of  December,  1839,  Davis  sued  the  complainant  on 
the  note,  and,  on  the  thirteenth  day  of  May  following,  obtained 
a  judgment  against  him,  by  default,  for  $172.06  damages,  and 
$29.20  costs.  The  bill  further  stated,  that  complainant,  until 
the  month  of  November,  1841,  when  he  filed  his  bill,  was 
entirely  ignorant  of  the  facts  above  stated ;  and  that,  if  he  had 
been  aware,  or  had  suspected,  during  the  pendency  of  the  suit 
against  him,  that  the  tacts  were  as  he  had  since  learned 
*them  to  be,  or  that  there  was  any  defense  to  said  note,  [*17] 
on  the  ground  of  want  of  consideration,   or  fraud,  he 

29 


18  CASES  m  CHANCEKT. 

Wixom  r.  Davis. 

■would  have  defended  the  action ;  and  that,  during  the  pendency 
of  the  suit,  he  waived  any  defense  he  might  have  had  on  ac- 
count of  the  note  not  having  been  protested  for  non-payment, 
and  allowed  judgment  to  pass  against  him,  only  because  he  was 
ignorant  of  the  facts  stated.  That  an  execution  had  been  taken 
out  and  levied  on  his  goods,  which  were  advertised  for  sale;  and 
that  (Cook  was  reputed  to  be  insolvent. 

The  bill  prayed  for  an  injunction,  to  restrain  the  defendants 
from  selling  the  goods,  e^c,  which  was  granted:  and  the  defend- 
ants now  move  to  dissolve  the  injunction. 

T.  Romeyn,  for  complainant. 

! 

H.  U.  Emmons,  for  defendant. 

The  Chancellok.  From  the  complainant's  bill,  it  appears 
that  he  and  Cook,  the  maker  of  the  note  on  which  the  judg- 
ment was  obtained,  reside  in  the  same  town;  and  it  is  nowhere 
stated  that  the  complainant,  when  he  was  sued,  applied  to  Cook 
to  know  whether  there  was  a  defense  to  the  action.  The 
inference  is  that  he  did  not;  for,  if  he  had,  as  Cook  knew  all 
the  facts,  it  is  to  be  presumed  he  would,  in  season  to  have  made 
his  defense  at  law,  have  been  put  in  possession  of  the  informa- 
tion of  which  he  complains  he  was  ignorant  when  the  judgment 
was  obtained.  He  had  indorsed  the  note  for  the  accommoda- 
tion of  Cook;  and  he  should  have  inquired  of  him  when  he 
was  sued  upon  it,  if  there  was  any  defense.  In  this  respect  he 
failed  to  use  that  diligence  he  should  have  used,  and  the  injus- 
tice of  which  he  complains  is  the  result  of  his  own  negligence, 

and  not  of  any  defect  in  the  law.  This  Court  cannot  give 
[*18]     relief  in  such  a  case.     "  I  do  not  know  (*says  Chancellor 

Kent,  in  Penny  v.  Martin,  4  J.  C.  R.,  566,)  of  any  prin- 
ciple that  will  authorize  this  Court  to  take  jurisdiction  of  a  case 
where  the  remedy  was,  in  the  first  instance,  full  and  adequate 
at  law,  because  the  party  may  have  lost  that  remedy  by  igno- 
rance, founded  on  negligence,  not  on  accident,  or  mistake,  or 

30 


FIEST  CIRCUIT,  JUNE,  1842.  18 

Wixom  r.  Davis. 

on  any  misrepresentation  or  fraud." '  The  complainant  not 
only  neglected  to  inquire  of  his  principal  whether  there  was  a 
defense  to  the  action,  but  waived,  as  the  bill  states,  "  any  de- 
fense he  might  have  had  on  account  of  the  note  not  having  been 
protested  for  non-payment;"  and  then,  eighteen  months  after- 
wards, and  after  an  execution  had  been  taken  out  and  levied  on 
his  property,  and  the  same  had  been  advertised  for  sale,  files 
his  bill  for  relief,  without  stating  any  excuse  whatever,  for  not 
having  made  his  defense  at  law,  otherwise  than  his  ignorance 
of  the  facts  until  a  short  time  previous  to  filing  the  bill  of  com- 
plaint. 

The  ignorance  of  a  party  of  his  defense  at  law  is  not  a  sufii- 
cient  reason  to  warrant  the  Court  in  interfering  with  a  judg- 
ment, where  such  ignorance  is  connected  with  negligence,  and 
might  have  been  removed  by  the  use  of  ordinary  means  to  ob- 
tain the  necessary  information.  Penny  v.  Martin^  4  J.  C.  H., 
566;  Foster  v.  Wood,  6  J.  C.  R.,  87;  Duncan  v.  Lyon,  3  J. 
C.  R,  351;  Aurialr.  Smith,  1  Turn.  &  Russ.,  121;  (S.C.  11 
Eng.  Cond.  Ch.  R.  69.)  This  is  the  rule  in  equity  where  a 
party  asks  for  leave  to  tile  a  bill  of  review;  Livingston  v.  Iluhhs^ 
3  J.  C.  R.,  124;  Bingham  v.  Dawson,  Jac.  R.,  243;  (S.  C.  4 
Eng.  Cond.  Ch.  R.,  114;)  and  at  law,  where  he  applies  for  a 
new  trial  on  the  ground  of  newly  discovered  evidence.  Tho 
People  V.  Superior  Court  of  New  York,  5  "Wend.  R.,  121. 
Tlie  injunction  must  be  dissolved. 

Injunction  dissolved. 

'  See  also  Barrows  v.  Doty,  1  Harr.  Ch.  R.,  2;  Wright  r.  King,  id.,  12,  and 
note  at  the  end  of  the  case. 


31 


19  CASES  m  CHANCERY. 


Schwarz  v.  Sears. 


["•19]   "^'Cathakine  Schwaez  et  al.  v.  Nathan  Seaes 
et  al. 

Where,  on  a  reference  to  a  Master  to  ascertain  the  amount  due  on  a  moitguge, 
the  mortgagor  appeared  before  the  Master,  and  at  first  refused  to  take  a 
part  in  the  proceedings,  but  after  remaining  in  the  Master's  office  for  an 
hour  or  more,  and  before  the  opposite  party  had  left,  offered  to  prove  cer- 
tain payments  on  the  mortgage,  and  the  Master  refused  to  hear  the  testi- 
mony, on  the  ground  that  his  report  was  closed,  or  that  it  was  then  too 
late,  the  Court  decided  that  the  Master  should  have  heard  the  testimony 
offered. 

Where  a  Master  has  erroneously  refused  to  receive  testimony,  a  motion  should 
be  made  for  an  order  requiring  him  to  receive  it;  and  this  should  be 
done  immediately,  and  without  waiting  for  him  to  make  his  report.^ 

The  Master  should  in  such  case,  at  the  request  of  either  party,  make  out 
and  deliver  to  the  party  requiring  it,  a  certificate  stating  briefly  the  facts 
of  the  case,  and  his  reasons  for  rejecting  the  testimony;  that  the  Court 
may  review  his  decision  with  as  little  delay  as  possible. 

Exceptions  to  a  Master's  report,  are  proper  only  where  the  Master  has  come  to 
an  en'oneous  conclusion,  either  of  law  or  fact,  on  the  whole  or  some  part 
of  the  evidence  before  him,  touclung  the  subject  matter  of  the  reference.* 

The  admissions  in  a  bill  or  answer,  to  be  conclusive  on  the  party  making  them, 
must'be  full  and  unequivocal.  They  must  not  be  inferred  from  other  ad- 
missions, unless  the  express  admission  is  so  closely  connected  with  the  one 
to  be  infen-ed,  that  to  disprove  the  latter  would  disprove  the  former. 

This  was  a  motion  to  set  aside  a  Master's  report,  for  irregu- 
larity. 

The  complainants  had  filed  their  bill  to  have  a  statutory 
foreclosure  of  a  mortgage  declared  null  and  void,  and  to  re- 
deem the  mortgaged  premises.  The  bill  was  taken  as  confessed 
ajrainst  the  defendants,  who  afterwards  obtained  an  order  of 
reference  to  a  Master  to  compute  and  ascertain  the  amount  due 
on  the  mortgage.  The  Master  assigned  a  day  to  liear  the  par- 
ties, and,  at  the  time  appointed,   Schwarz   and  liis  solicitor 

'  See  Wood  v.  Jewett,  post,  4o;  Emei'son  v.  Atwater,  12  Mich.,  314. 
'  See  Emerson  v.  Atwater,  supra. 
32 


FIKST  CIRCUIT,  JUNE,  1842.  21 

Schwarz  v.  Sears. 

appeared.  At  first  *thej  objected  to  taking  any  part  [*20] 
ill  the  proceedings  before  the  Master,  alleging  that  they 
were  dissatisfied  with  the  reference;  but  after  remaining  in  his 
oftice  about  an  hour,  and  conversing  on  the  several  payments 
that  had  been  made  on  the  mortgage,  Schwarz,  by  his  solicitor, 
proposed  to  prove  before  the  Master  that  more  payments  had 
been  made  on  the  mortgage,  by  the  complainants,  than  the 
several  payments  stated  by  them  in  their  bill  of  complaint. 
The  Master  refused  to  receive  the  testimony;  and  stated,  as  a 
reason  for  doing  so,  that  his  report  was  closed,  or  that  it  was 
then  too  late. 

A.  D.  Frasei\  for  complainants. 

Witherell  (&  Buel^  for  defendants. 

The  Chancellor.  The  Master  erred,  in  refusing  to  receive, 
the  evidence  offiered  by  the  complainants.  Schwarz  and  his 
solicitor  were  dissatisfied  with  the  reference,  and  did  not  in- 
tend, when  they  went  to  the  Master's  office,  to  take  any  part  in 
the  proceedings;  but  they  came  to  a  different  conclusion  before 
leaving  it,  and  while  the  defendants'  counsel  was  still  present. 
I  think  the  Master  should,  therefore,  have  heard  the  testimony. 
It  was  clearly  competent  for  him  to  have  done  so.  It  was  the 
first  appearance  of  the  parties  before  him,  and  the  proceedings 
had  not  advanced  so  far  as  to  render  it  improper. 

But  it  is  insisted,  by  the  counsel  for  the  defendants,  that  the 
complainants  cannot  take  advantage  of  the  Master's  error  on 
this  motion ;  first,  because  they  have  not  excepted  to  the  re- 
port, and  secondly,  because  they  have,  by  setting  out  various 
payments  in  their  bill,  precluded  themselves  from  showing 
other  payments;  or,  in  other  words,  admitted  the  balance,  after 
deducting  these  paj-ments,  to  be  the  amount  due  on  the  mort- 
gage. 

*AVlien  the  Ma^^ter  has  erroneously  refused  to  receive    p21] 
testimony,  as  m'iis  the  case  in  the  present  instance,  a 
motion  should  be  made  for  an  order  requiring  him  to  receive 
it.     This  should  be  done  immediately,  and  without  waiting  for 
Vol.  I.— 3  33^ 


^^  OASES  IN  CHANCEKT. 

Schwarz  v.  Sears. 

liim  to  make  his  report;  and  the  Master,  at  the  request  of 
either  party,  should  make  and  deliver  to  such  party  a  certificate 
stating  briefly  the  facts  of  the  case,  with  his  reasons  for  reject- 
ing the  testimony,  that  the  Court  may  review  his  decision  with 
as  little  delay  as  possible.  See  Jlqf.  Mast,  in  Chan.  58-59, 
and  cases  there  cited.  Exceptions  to  the  report  are  proper  only 
where  the  Master  has  come  to  an  erroneous  conclusion,  either 
of  law  or  fact,  on  the  whole  or  some  part  of  the  evidence  before 
him  touching  the  subject  matter  of  the  reference.  Tyler  v. 
Simmons,  6  Paige  R.  127-  "Wlien  a  witness  is  improper]}^ 
rejected,  the  evidence  he  might  have  given  is  not  taken  into 
account  hj  the  Master  in  making  up  his  report,  nor  is  it  by  the 
Court,  in  reviewing  on  exceptions  the  correctness  of  the  con- 
clusions the  Master  has  come  to  from  the  evidence  before  him. 
The  Court  will  not  hear  evidence  that  was  not  before  the 
Master,  nor  undertake  to  decide  a  different  case,  or  what  the 
Master's  report  should  have  been  on  a  different  state  of  facts, 
r  With  regard  to  the  second  objection,  it  would  be  a  sufficient 
reason  for  refusing  to  send  the  report  back  to  the  Master  to  be 
reviewed  by  him,  if  the  complainants  had  stated  in  their  bill 
a  certain  sum  to  be  due  on  the  mortgage;  or  if,  after  setting 
forth  the  various  payments,  they  had  gone  on  to  state  they  were 
the  only  payments,  or  all  of  the  payments  that  had  been  made 
on  the  mortgage.  Thei-e  would  then  liave  been  a  clear  and  full 
admission  of  the  amount  due,  or  of  all  the  tacts  necessary  to 
ascertain  it. 

The  admission  of  a  party,  in  a  bill  or  answer,  to  be 
r*22]    *conclusive  on  the  party,  must  be  full  and  iinequi vocal. 

They  must  not  be  inferred  from  other  admissions,  unless 
the  express  admission  is  so  closely  connected  with  the  one  to  be 
inferred,  that  to  disprove  the  latter  would  disprove  the  fonner. 
It  has  already  been  stated  there  is  no  direct  admission  in  the 
complainants'  bill  of  the  amount  due  on  the  mortgage.  It  is, 
however,  to  be  inferred,  from  the  various  payments  stated  in 
the  bill  of  complaint,  that  the  amount  due  is  the  balance  whicli 
will  remain,  after  deducting  these  payments  from  the  amount 
for  whicli  the  mortgage  was  given.     But  this  may,  or  may  nut 

34 


FIEST  CIRCUIT,  JUNE,  1842.  ^        23 

Suydam  t\  Dequindre. 

be  true;  and  to  disprove  it  would  not  contradict  any  allegation 
of  the  bill.  The  complainants  therefore  should  not  be  precluded 
from  showing  other  payments,  in  addition  to  those  stated,  if 
they  can  establish  such  payments  by  clear  and  unquestionable 
proof.  At  the  same  time,  the  Court  will  not  disregard  the 
strong  presumption  arising  against  such  payments  from  the 
complainants'  own  statement  of  their  case;  and  must  be  satis- 
fied beyond  a  reasonable  doubt  that  they  have  been  made,  before 
allowing  them. 

The  proceedings  before  the  Master  were  regular,  and  the 
motion  to  set  aside  the  report  for  irregularity  must  be  denied ; 
but  as  the  Master  erred  in  refusing  to  hear  the  complainants' 
testimony,  an  order  may  be  entered  for  him  to  review  his  report. 


*RiCHARD  Suydam  et  al.  v.  Antoine  Dequindee   ^23] 

et  al. 

Practice  as  to  confinnation  of  Master's  report  under  the  eighty-second  rule  of 
the  Court. 

An  agreement  between  counsel  in  a  case  must  be  in  writing,  or  reduced  to  the 
form  of  an  order  by  consent,  pursuant  to  the  provisions  of  rule  87,  in  order 
to  be  noticed  by  the  Court.' 

Where  the  proceedings  before  a  Master  have  been  irregular,  his  report  may 
be  set  aside  for  irregularity,  on  motion.  In  such  case  an  order  should  be 
obtained  enlarging  the  time  to  except  until  the  motion  can  be  heard  and 
decided. 

"Where  the  Master  decides  against  allowing  a  claim  presented,  the  proper 
way  of  bringing  the  question  before  the  Court,  is  by  exception  to  the  Mas- 
ter's report. 

Where  the  person  who  executed  a  trust  deed  for  the  benefit  of  his  creditors, 
offered,  as  administrator,  to  prove  a  debt  due  from  him  to  the  estate,  held, 
that  it  was  incompetent  for  him  to  do  so;  but  that  the  next  of  kin  of  the 
deceased,  or  others  entitled  to  the  money  due  from  him  as  administrator, 
might  come  in  and  claim  under  such  deed,  as  his  individual  creditors. 

'  See  Brooks  r.  Mead,  posi,  389. 

35 


24  CASES  m  CHANCERY. 

< 

Suydam  v.  Dequindre. 

This  was  a  motion  to  confirm  the  report  of  a  Master  on  a 
reference  to  ascertain  and  report  the  names  of  the  several  cred- 
itors, and  the  amount  due  to  each,  under  a  deed  of  trust.  The 
facts  of  the  case  are  sufficiently  stated  in  the  opinion  of  the 
Chancellor. 

^.  C.  /Seamaii,  for  comj^lainants. 

.1.  D.  Fraser^  for  defendants. 

The  Chakcellor.  By  the  82d  rule  of  the  Court,  either 
party,  after  the  Master's  report  is  filed,  may  enter  an  order  with 
the  Register  for  its  confirmation,  unless  cause  is  shown  to  the 
contrary  within  eight  days;  and  if  exceptions  are  not  filed  and 

served  on  the  party  entering  it  within  that  time,  the  order 
[*  24]  becomes  absolute  of  course,  without  *  notice  or  further 

order,  and  the  report  stands  confirmed.  The  complain- 
ants should  have  proceeded  under  this  rule,  instead  of  making 
a  special  motion  for  a  confirmation  of  the  report.  The  defend- 
ants might  have  successfully  opposed  the  motion  on  the  ground 
that  they  were  entitled  to  eight  days  to  file  exceptions  in,  after 
the  order  had  been  entered ;  but  as  they  relied  on  other  objec- 
tions, in  their  opposition  to  the  motion,  I  will  proceed  to  decide 
them. 

First.  It  was  insisted  that  the  proceedings  before  the  Mas- 
ter were  irregular,  informal  and  defective,  and  should  be  set 
aside;  and  affidavits  were  read  to  show  that  Dequindre,  as  ad- 
ministrator of  the  estate  of  Catharine  Dequindre,  deceased, 
presented  a  claim  before  the  Master,  and  appeared  once  or  twice 
before  him,  when  he  was  taken  s'ick,  and  several  adjournments 
took  place  in  consequence  of  his  illness;  and,  he  being  still 
unable  to  attend,  an  agreement  was  entered  into  between  the 
solicitors  for  an  indefinite  postponement  of  the  proceedings 
until  Dequindre  should  be  able  to  appear  before  the  Master. 
This  agreement  was  not  reduced  to  writing,  or  noted  by  the 
Master  in  the  record  of  the  proceedings  before  him,  and  is  de- 
nied by  the  affidavit  of  the  complainants'  solicitor.  It  cannot 
therefore,  be  noticed  by  the  Court.  The  87th  rule  of  the  Court 
36 


FIRST  CIECUIT,  JUNE,  1842.  25 

Suydain  v.  Dequindre. 


says:  "  Ko  private  agreement  or  consent  between  the  parties, 
in  respect  to  the  proceedings  in  a  cause,  shall  be  alleged  or 
suggested  bj  either  of  them  against  the  other,  unless  the  same 
shall  have  been  reduced  to  the  form  of  an  order,  by  consent,  and 
entered  in  the  book  of  common  orders;  or  unless  the  evidence 
thereof  shall  be  in  writing,  subscribed  by  the  party  against 
■whom  it  is  alleged  or  suggested,  or  by  his  solicitor  or  counsel." 
The  affidavits  also  state  that  no  summons  was  served  on  De- 
quindre, or  his  solicitor,  to  bring  in  objections  and  for  settling 
the  draft  of  the  Master's  report.  This  was  not  nec- 
essary* under  the  81st  rule,  which  requires  the  Master,  [*25] 
wlien  he  has  prcjjared  the  draft  of  his  report,  to  deliver 
copies  thereof  to  such  of  the  parties  as  apply  for  the  same, 
and  to  assign  a  time  and  place  for  the  parties  to  bring  in 
objections,  and  for  settling  the  draft  of  his  report;  but  no 
summons  is  required  for  that  purpose,  and  the  parties  must, 
as  the  rule  now  stands,  take  notice  of  the  time  and  place  at 
their  peril.  I  think  the  rule  clearly  defective  in  this  respect, 
more  especially  as,  by  the  seventy-eighth  rule,  the  parties 
are  confined  in  their  exceptions  to  the  report,  to  the  objections 
taken  by  them  before  the  Master.  I  shall  so  amend  the  rule  as 
to  make  a  summons  necessary  hereafter.'  When  the  proceed- 
ings before  the  Master  have  been  irregular,  his  report  may  be 
set  aside  for  the  irregularity,  on  motion.  An  order  in  such 
case  should  be  obtained,  enlarging  the  time  to  except  in  until 
the  motion  could  be  heard  and  decided;  as  an  exception  to  the 
report  pending  the  motion  would  be  a  waiver  of  the  irregular- 
ity.    Tyler  v.  Simmons,  6  Paige  R.,  127. 

Second.  Another  objection  insisted  on  by  the  defendants' 
counsel  was,  that  the  Master  had  decided  against  the  claim 
presented  by  Dequindre  as  administrator.  This  question  should 
have  been  brought  before  the  Court  on  an  exception  to  that 
part  of  the  Master's  report,  I  think  the  Master  was  right  in 
rejecting  it.  On  the  24:th  October,  1836,  Dequindre  conveyed  to 
Desnoyers  a  large  amount  of  real  estate  and  some  personal  prop- 
erty, in  trust  for  certain  creditors  named  in  a  schedule  annexed 

'  This  rule  has  since  been  amended. 

37 


26  CASES  IN  CHANCERY. 

Suydam  v.  Dequindre. 

to  the  deed  of  trust,  and  forming  a  part  of  it.  Desnoyers  was 
required  within  a  specified  time  to  sell  tlie  property,  or  so 
much  of  it  as  should  be  necessary  to  pay  the  debts  and  the  ex- 
penses attending  the  execution  of  the  trust,  and  then  to  recou- 

vey  what  was  left,  if  anything,  to  Dequindre.  The 
[*26]    complainants  filed  their  bill  to  compel  an  execution  "^of 

this  trust,  and  there  was  a  reference  to  a  Master  to  take 
proof  of  the  debts  due  the  several  creditors  who  had  not  been 
paid,  and  who  might  elect  to  come  in  and  take  under  the  deed 
of  trust.  Dequindre,  as  administrator  of  the  estate  of  Catharine 
Dequindre,  deceased,  presented  to  the  Master  for  his  allowance 
a  claim  of  $3,374.96.  This  debt  in  the  schedule  is  stated  at 
about  $800.  Dequindre  claimed  this  large  amount  in  his  rep- 
resentative capacity,  and  not  as  the  attorney  and  in  the  name 
of  the  creditors  or  next  of  kin  of  Catharine  Dequindre,  de- 
ceased, to  whom  the  money  in  fact  belongs,  and  who  were  the 
proper  persons  to  claim  it,  and  not  Mr.  Dequindre.  The  deed 
of  trust  secures  nothing  to  him  except  the  balance  of  the  prop- 
erty after  his  creditors  are  paid.  The  next  of  kin,  or  other 
persons  entitled  to  the  money  due  from  him  as  administrator 
of  the  estate  of  Catharine  Dequindre,  deceased,  are  to  be  con- 
sidered as  his  individual  creditors,  for  all  the  beneficial  pur- 
poses of  the  trust,  and  as  standing  on  the  same  footing  with 
such  creditors;  and  it  is  optional  with  them,  as  with  his  other 
creditors,  to  come  in  and  claim  under  the  trust  deed  or  not. 
They  may  do  so,  or  they  may  not,  as  they  choose.  Mr.  De- 
quindre cannot  do  it  for  them,  and  thereby  prevent  those  cred- 
itors who  have  proved  their  debts  from  receiving  the  whole 
amount  due  to  them. 

Master's  renort  confirmed. 


38 


FIRST  CIRCUIT,  JUNE,  1842.  27 

Ingersoll  v.  Kirby. 


*JusTus  Ingersoll  v.  Zebulon  Kirby  &  George    ['^'27] 

Kirby. 

Whore  a  date  is  given,  both  as  a  day  of  the  week  and  a  day  of  the  month,  and 
the  two  are  inconsistent,  the  day  of  the  month  must  govern.' 

Tins  was  a  motion  to  set  aside  a  Master's  report  for  irregu- 
larit}'. 

The  Master's  summons  was  dated  the  otli  of  December,  1841, 
was  served  on  the  6th,  and  required  the  parties  to  appear  before 
liim  on  '■'- Wednesday ^the  Ith  December.''^  AVednesday  was  the 
eighth  of  December,  and  on  that  day  the  Master  proceeded 
witli  the  reference.  The  defendants  did  not  appear  on  either 
day. 

D.  Goodwin,  in  support  of  the  motion. 

A.  W.  Biiel,  contra. 

The  Chancelloe.  The  day  of  the  month  and  not  of  the 
Aveek  must  govern,  when  they  fall  on  diiferent  days,  as  in  the 
])resent  case;  and  the  summons  was  not  served  in  season  for 
the  seventh  of  December,  the  rule  requiring  at  least  two  days' 
service.  If  the  mistake  had  been  in  naming  the  day  of  the 
week,  that  part  of  the  summons  might  be  rejected  as  surplus- 
age, and  the  summons  still  be  good,  unless  the  j)arty  had  been 
misled  by  it. 

Motion  granted. 

'  Where  a  promissory  note  bearing  date  July  '20tli,  was  expressed  to  be  pay- 
able "one  year,  August  15th,  after  date:"  Held,  that  the  note  should  be  read 
as  if  written,  "on  the  15th  day  of  August,  one  year  after  date,"  or  "one  year 
from  the  15th  of  August,  after  date,"  either  of  which  is  equivalent  to  "one 
year  from  the  15th  of  August  next,"  and  that  the  note  did  not  mature  one  year 
from  its  date.    Washington  County  Bank  v.  Jerome,  8  Mich.,  490. 


30 


28  CASES  m  CHANCERY 


Williams  c.  Hubbard  et  al. 


[*28]    *Alfeed  Williams  v.  Diodate  Hubbaed  et  al. 

There  are  two  classes  of  cases  in  wliicli  a  judgment  creditor  may  come  into 
Chancery  for  relief.  1st,  In  aid  of  his  execution  at  law.  2d,  To  have  his 
judgment  satisfied  out  of  choses  in  action,  or  other  property  of  the  debtor 
not  liable  to  execution. 

In  the  first  class  of  cases,  he  must  show  that  an  execution  has  been  issued,  but 
it  is  not  necessary  to  show  that  it  has  been  returned.' 

In  the  second  class,  the  biU  must  show  that  an  execution  has  been  issued  and 
returned  unsatisfied,  in  whole  or  in  part;  and  this  should  be  shown  by  the 
officer's  return.* 

An  officer's  return,  to  be  sufficient  for  this  purpose,  must  be  such  as,  if  untrue, 
would  render  him  liable  for  a  false  return. 

A  return  of  an  execution  unsatisfied  by  dk-ection  of  the  party  suing  it  out,  is 
not  sufficient  for  this  purpose. 

A  judgment  creditor's  bill  may  be  filed  for  the  double  purpose  of  aiding  an 
execution,  and  reaching  property  which  is  not  subject  to  execution. 

A.  general  demurrer  will  be  overruled,  unless  good  as  to  the  whole  of  the  biU.^ 

This  was  a  general  demurrer  to  a  judgment  creditor's  bill. 

The  bill  stated,  that  in  March,  ISil,  the  complainant  ob- 
tained a  jndgment  in  the  Circuit  Court  for  the  county  of  Oak- 
land, against  the  defendants,  Hubbard  and  Cooper,  for  $209.85, 
on  which  he  sued  out  an  execution  on  the  27th  of  April  follow- 
in  «•,  and  placed  it  in  the  hands  of  the  sheriff,  whose  return  was 
in  these  words:  "That  the  said  Diodate  Hubbard  had  goods 
and  chattels  in  his  possession  on  which  he  had  levied,  but  that 
said  defendant  alleged  that  they  were  mortgaged  and  not  his 

>  See  Beach  v.  White,  post,  499. 

*See  Smith  v.  Thompson,  ani^,  1;  Steward  v.  Stevens,  Harr.  Ch.,  169; 
Thayer  v.  Swift,  id.,  430;  Stafford  v.  Hulbert,  id.,  435. 

aSeeBarstowv.  Smith,  post,  394;  Clark  v.  Davis,  Harr.  Ch.,  227;  Thayer 
V.  Lane,  id.,  247;  Hawkins  v.  Clermont,  15  Mich.,  511;  Edwards  v.  Hulbert, 
post,  54;  Burpee  v.  Smith,  jMst,  327;  Welles  v.  River  Raisin  etc.,  R.  R.  Co., 
post,  35;  Hoffman  v.  Ross,  25  Mich.,  175.  See,  also,  Flanders  v.  Chamber- 
lain, 24  Mich.,  305. 

40 


FOURTH  CmCUIT,  JULY,  1842.  29 

Williams  v.  Hubbard  et  al. 

property,  and  by  direction  of  the  plaintiff  he  returned  the  exe- 
cution unsatisfied,  and  that  said  Hubbard  and  Cooper  luid  no 
goods  and  cliattels,  lands  or  tenements  whereof  he  could 
make  the  said  damages  and  costs  or  any  part  ^thereof."  .['^'29] 
The  complainant  thereupon  filed  his  bill  in  this  Court 
setting  forth  the  judgment,  execution,  and  return,  and  charg- 
ing that  Hubbard  and  Cooper  had  equitable  interests  and  things 
in  action  of  the  value  of  $100,  and  more,  that  could  not  be 
reached  by  execution  at  law,  «fec.,  and  that  Hubbard  had  con- 
veyed certain  real  estate  described  in  the  bill  to  the  defendant 
Mooney,  for  the  purpose  of  defrauding  the  complainant,  and 
his  other  creditors,  and  praying  a  discovery  and  the  appointment 
of  a  receiver,  and  for  other  and  further  relief.  The  defendants 
demurred. 

A.  II.  Hanscom,  in  support  of  the  demurrer. 

J.  B.  Hunt.,  contra. 

TuE  Chancellor.  There  are  two  classes  of  cases  in  which  a 
judgment  creditor  may  come  into  this  Court  for  relief.  First., 
In  aid  of  his  execution  at  law;  as  to  set  aside  an  incumbrance 
or  a  transfer  of  property  made  to  defraud  creditors.  Second., 
To  have  his  judgment  paid  out  of  choses  in  action,  or  other 
property  of  the  debtor  not  liable  to  execution.  Beck  v.  Burdett., 
1  Paige  K.  305.  Relief  is  given  in  these  two  classes  of  cases 
on  different  principles.  In  the  first  class,  on  the  ground  of 
fraud;  and  in  the  other,  on  the  ground  that  the  complainant 
has  exhausted  his  remedy  at  law,  and  that  it  is  inequitable  and 
unjust  for  the  debtor,  under  such  circumstances,  to  refuse  to 
apply  any  choses  in  action,  or  other  property  belonging  to  him 
not  liable  to  execution,  in  payment  of  the  judgment. 

To  entitle  a  party  to  the  aid  of  this  Court  in  the  first  class  of 
cases,  an  execution  must  have  been  issued,  but  it  is  not  necessary 
that  it  should  have  been  returned:  Clarkson  v.  DePey- 
ster,  3  Paige  R.  320;  McFAwain  v.  ^Villis,  9  *Wend.    [*30] 
R.  5-48;  or,  if  has  been,  that  a  new  execution  has  been 
taken  out.     The  right  to  come  into  this  Court  for  relief  in  this 

41 


31  CASES  IN  CHANCERY. 

Williams  v.  Hubbard  et  al. 

class  of  cases,  is  complete  the  moment  an  execution  is  issued. 
The  fraudulent  conveyance  then  works  an  injury  to  the  cred- 
itor, by  hindering  and  delaying  him  in  the  collection  of  his 
judgment.  But  when  the  creditor  asks  to  have  his  judgment 
satisfied  out  of  property  belonging  to  the  debtor,  not  liable  to 
execution,  he  must  show  not  only  that  an  execution  has  been 
taken  out,  but  that  it  has  been  returned  unsatisfied  in  whole  or 
in  part.  This  should  be  shown  by  the  ofiicer's  return  to  the 
writ,  -which,  to  be  a  good  and  sufficient  return  for  that  purpose, 
should  be  such  a  return  as  would  subject  the  officer  to  an  action 
at  the  suit  of  the  debtor,  for  a  false  return,  if  a  bill  should  be 
filed  against  him  in  this  Court,  when  he  had  property  that 
miglit  have  been  levied  on  and  sold  to  satisfy  the  execution. 
The  officer's  return  in  the  present  case  shows  that  Hubbard  had 
goods  and  chattels  in  his  possession,  which  were  levied  on,  but 
that  they  were  mortgaged ;  and  that  the  execution  was  returned 
unsatisfied  by  the  directions  of  the  complainant,  and  not  on  the 
personal  responsibility  of  the  officer,  as  it  should  have  been  to 
make  him  accountable  for  a  false  return.  A  party  suing  out  an 
execution,  may,  if  he  chooses,  direct  it  to  be  returned  unsatis- 
fied, but  he  cannot  afterwards  turn  round  and  sue  the  officer 
for  a  false  return,  or  tile  a  bill  in  this  Court  to  have  his  judg- 
ment satisfied  out  of  choses  in  action  belonging  to  the  debtor. 
The  demurrer  would  therefore  be  good,  if  this  were  the  sole 
object  of  the  complainant's  bill. 

It  is  not  unusual  for  judgment  creditor's  bills  to  be  so  framed 
as  to  include  the  two  classes  of  cases  I  have  mentioned;  and 
there  appears  to  be  no  objection  to  such  a  course.     The 
[*31]    debtor  might  not  have  sufficient  choses  in  ^-action  to  sat- 
isfy the  judgment,  and  in  that  event  it  would  be  neces- 
sary to  file  a  second  bill  to  set  aside  fraudulent  conveyances 
made  by  him,  if  the  two  could  not  be  united  in  the  same  bill. 
The  complainant's  bill  is  a  bill  of  this  description.     There  is 
no  special  prayer,  it  is  true,  to  set  aside  the  conveyance  from 
Hubbard  toMooney,  but  under  the  general  prayer  for  other  and 
further  relief  the  complainant  would  be  entitled  to  have  it  set 
aside,  if  it  should  turn  out  on  the  final  hearing,  to  have  been 
42 


FIEST  CIECUIT,  APKIL,  1842. 


Russell  V.  Waite  et  al. 


made  to  defraud  creditors.  To  this  part  of  the  bill  the  demur- 
I'er  is  bad.  It  must  therefore  be  overruled,  it  not  being  a  good 
.defense  to  the  whole  bill. 


Demurrer  overruled. 


Joseph  Kussell  v,  Austin  B.  Waite  et  al. 

In  applications  for  opening  decrees  obtained  regularly  by  default,  no  general 
rule  can  be  laid  down;  but  each  case  must,  in  a  great  measure,  depend 
upon  its  own  circumstances,  and  the  sound  discretion  of  the  Court. 

Such  a  decree  should  be  opened  only  under  special  circumstances,  and  to  pro- 
mote the  ends  of  justice.^ 

The  assignee  of  a  mortgage  takes  it  s  ibject  to  all  equities  existing  between 
the  parties  to  it,  at  the  time  of  the  assignment.'^ 

An  agreement  in  the  nature  of  a  defeasance  is  required  by  the  Revised 
Statutes  to  be  recorded,  only  when  it  relates  to  a  conveyance,  which  on  its 
face,  purports  to  be  absolute. 

Tins  was  a  petition  filed  by  the  defendant  Waite,  for  the 
purpose  of  setting  aside  a  decree. 

'  See  Hart  v.  Linsday,  jwst,  72.  A  decree  by  default  may  always  be  opened 
within  a  reasonable  time  on  showing  an  adequate  excuse;  and  this  must 
generally  be  within  the  sound  discretion  of  the  Court.  Brewer  v.  Dodge,  28 
Mich..  359. 

But  an  enrolled  decree  upon  default  after  appearance  can  be  opened  for 
re-examination  only  by  bill  of  review.     Maynard  r.  Pereault,  30  Mich.,  160. 

As  to  who  will  be  bound  by  the  proceedings  upon  the  petition  to  open  a 
decree  of  foreclosure,  see  Stone  v.  Welling,  14  Mich.,  514. 

'■•See  Dutton  v.  Ives,  5  Mich.,  515;  Nichols  v.  Lee,  10  id.,  526;  Bloomer  r. 
Henderson,  8  id.,  395;  Terry  v.  Tuttle,  24  id.,  206,  where  the  mortgage 
was  given  to  secure  a  non-negotiable  bond. 

But  where  the  mortgage  is  accompanied  by  a  promissory  note,  and  they  are 
assigned  before  due  to  a  bona  Jide  indorsee,  he  will  not  be  affected  by  any 
equities  existing  detween  the  original  parties.  Reeves  t^.  Scully,  joos^,  248; 
Pulton  V.  Ives,  5  Mich.,  515. 

But  the  bona  fide  assignee  of  a  mortgage  does  not  take  it  subject  to  any 
equities  between  the  mortgagor  and  his  grantor,  growing  out  of  the  fraud  of 
the  mortgagor  in  procurmg  the  title  to  the  land.  Bloomer  v.  Henderson,  8 
Mich.,  395. 


32  CASES  m  CHA:N'CEPwY. 


Russell  V.  Waite  et  al. 


[*32]        *The  bill  was  tiled  October  3d,  1840,  to  foreclose  a 
mortgage,  bearing  date  June  4th,  1838,  given  by  Waite 
to  S.  Blancliard,  and  assigned  by  Blanchard  to  the  complain- 
ant.    The  bill  having  been  taken  as  confessed  against  the  de- 
fendants, a  decree  was  entered  December  7th,  1841,  and  the 
mortgaged  premises  were  advertised  to  be  sold  March  18th, 
1842,  at  which  time  the  sale  was  adjourned.     The  facts,  as  they 
appear  from  the  petition,  the  affidavit  of  P.  K.  Adams,  and 
the  answer  which  the  defendant  Waite  wished  to  put  into  the 
bill,  were  as  follows :     The  mortgage  was  given  to  secure  the 
purchase  iHoney  of  the  mortgaged  premises,  which  had  been 
purchased  by  Waite  of  Blanchard.     The  parties  at  the  same 
time  entered  into  a  written  agreement,  under  their  hands  and 
seals,  which  was  drawn  up  by  Adams,  and  left  with  him  for 
safe  keeping.     By  this  agreement,  Waite  bound  himself  to 
build  a  tavern-house  on  the  mortgaged  premises  by  January 
1st,  1839;  and  Blanchard  bound  himself,  at  the  election  of 
Waite,  who   was  to  give   him   notice   thereof   on  or  before 
November  1st,  1839,  to  put  in  as  common  stock,  which  should 
be  held  by  them  according  to  their  respective  interests,  the 
land  he  had  conveyed,  against  the  improvements  to  be  made  by 
Waite;  the  land  to  be  put  in  at  $3,000,  and  the  improvements 
at  a  valuation  to  be  made  hy  disinterested  persons.     At  the 
solicitation  of   Blanchard,  the  tavern-house  was   built   three 
stories  high,  instead  of  two,  as  was  required  by  the  original 
ao-reement,  and  the  time  to  build  it  in  was  extended  to  April 
1st  1839,  when  it  was  completed;  and  Waite,  both  on  and  be- 
fore November  1st,  notified  Blanchard  of  his  election  to  turn 
the  property  into  common  stock  under  their  agreement,  and 
requested  him  to  select  disinterested  persons  to  appraise  the 
improvements.     On  February  4th,  1839,  Blanchard  assigned 
the  mortgage  to  the  complainant  as  collateral  security 
p33l    for  the  ^payment  of  certain  notes  the  complainant  held 
ao-ainst  him;  but  Waite  knew  nothing  of  the  assignment 
until  a  few  days  previous  to  November  1st,  1839.     Soon  after 
the  complainant  had  filed  his  bill,  Waite  went  to  Adams,  who 
was  his  attorney,  for  advice,  and  Adams  told  him  there  was  no 
44 


FIEST  CIRCUIT,  APRIL,  1842.  34 

Russell  V.  Waite  et  al. 

use  in  ])utting  in  any  answer  to  the  bill,  as  it  would  be  of  no 
benefit  to  liini,  Nothing  was  said  at  the  time  about  the  airree- 
nient  between  "Waite  and  Blanchard.  "Waite  did  not  make  any 
mention  of  it,  as  it  had  been  drawn  up  by  Adams,  who  knew 
its  contents,  and  had  been  left  with  him  by  the  jjarties  for 
sale  keeping,  and  was  then  in  his  jDOSsession.  After  the  mort- 
gaged premises  had  been  advertised  for  sale  by  the  Master, 
Waite  called  on  Adams  again,  and  requested  to  see  the  agree- 
ment, when  Adams  told  him  it  had  been  delivered  up  a  long 
time  before;  but  on  examining  his  papers  he  found  it  was  still 
in  his  possession.  Adams  had  got  the  impression  that  the 
contract  had  been  delivered  up  from  several  conversations  lie 
had  had  with  "Waite  and  Blanchard  in  November,  1839,  when 
they  were  endeavoring  to  settle  the  matter  between  them ;  and 
under  that  impression  he  had  given  to  Waite  the  advice  above 
stated. 

T.  Romeyn,  in  support  of  the  petition. 

Barstow  <&  Lockioood^  contra. 

The  Chancellor.  No  general  rule  can  be  laid  down  by  the 
Court  to  govern  it  in  applications  of  this  kind.  Each  applica- 
tion must  depend,  in  a  great  measure,  uj)on  its  own  circum- 
stances, and  the  sound  discretion  of  the  Court.  A  decree, 
regularly  obtained  against  a  party  by  default,  should  not  be 
opened,  unless  under  special  circumstances,  and  then  only  to 
promote  the  ends  of  justice.  Russell  took  the  mortgage 
subject  to  all  equities  existing  ^between  the  mortgagor  [*34] 
and  mortgagee  at  the  time  it  was  assigned  to  him.  Liv- 
ingston V.  Deaii^  2  J.  C.  R.,  479;  2furrar/  v.  Lilhiirii,  id.,  441; 
James  v.  Morey,  2  Cow.  R.  R.,  246.  He  stands  in  the  place 
of  Blanchard,  and  his  rights  under  the  assignment  are  the  rights 
of  Blanchard  under  the  mortgage,  and  nothing  more. 

There  was  no  necessity  for  recording  the  agreement,  which 
is  in  the  nature  of  a  defeasance.  The  Revised  Statutes,  (page 
261,  §  32,)  refer  to  conveyances  purporting  to  be  absolute  upon 
their  face,  and  not  to  mortgages. 

45 


35  CASES  IN  CIIANCEET. 

Yv'elles  V.  Eiver  Raisin  &  Grand  River  R.  R.  Co. 

AYaite  was  misled  by  liis  counsel,  who  advised  him  under  a 
misapprehension  of  the  facts;  and  I  do  not  think  the  time  that 
elapsed  between  the  discovery  of  the  error  and  the  service  of  a 
copy  of  his  petition,  with  notice  of  this  motion,  on  the  com- 
plainant's solicitor,  should  prejudice  the  present  application. 
The  copy  and  notice  were  served  on  May  14th,  and  Waite  did 
not  discover  the  error  into  which  he  had  been  led  by  his  coun- 
sel, until  after  the  mortgaged  premises  were  advertised  for 
sale. 

Let  the  decree,  and  the  order  to  take  the  bill  as  confessed, 
be  vacated  on  Waiters  paying  to  the  complainant's  solicitor  al] 
taxable  costs  subsequent  to,  and  including  the  order  to  take 
the  bill  as  confessed,  and  a  counsel  fee  of  ten  dollars.  The  or- 
der to  take  the  bill  as  confessed,  not  to  be  vacated  as  against  the 
other  defendants. 


[*35]  *JoHN  A.  Welles  &  Samuel  B.  Knapp  v.  River 
Raisin  and  Geand  River  Railroad  Company 
et  al. 

Wliere  the  charter  of  a  bank  prohibited  the  discounting  of  notes  for  stock- 
holders to  pay  installments  on  their  stock,  and  a  note  for  $70,000  and  a 
certificate  of  deposit  on  which  $12,000  was  due,  were  discounted  to  enable 
an  individual  to  purchase  a  controlling  interest  in  the  bank,  and  to  pay  the 
balance  due  the  bank  on  the  stock  purchased  by  him,  and  a  bill  was  filed 
to  restrain  a  suit  brought  by  the  bank  on  the  note,  and  to  have  the  note 
and  certificate  given  up  and  canceled;  upon  demurrer  it  was  held,  that 
the  bill  should  not  be  sustained,  and  that  the  parties  should  be  left  to  their 
remedy  at  law. 

Wliere  a  bill  is  filed  for  relief,  the  discovery  is  ancillary,  and  a  demurrer  which 
is  good  to  the  relief  is  good  to  the  discovery. 

Where  a  complainant,  entited  to  discovery  only,  goes  on  to  pray  relief  in 
addition,  his  whole  bill  is  demurrable.' 

Where  relief  has  l^een  refused  to  a  party  in  this  Court  on  account  of  the 
illegality  of  a  trauKaction,  the  Court  will  not  aid  him  at  law. 

'  See  Willaims  v.  Hubbard,  ante.^  28,  and  cases  cited  in  note. 
46 


FIPtST  CIKCUIT,  JULY,  1S42.  36 

Welles  V.  River  Raisin  &  Grand  River  R.  R.  Co. 

Tins  was  a  hearing  on  general  demurrer. 

The  bill  was  filed  to  stay  proceedings  at  law,  and  to  have  a 
certain  note  and  certificate  of  deposit  delivered  up  to  be  can- 
celed. 

The  bill  states,  that,  by  the  act  incorporating  the  River  Raisin 
and  Grand  River  Railroad  Company,  the  stockholders  were 
authorized  to  establish  a  bank  at  Tecumseh,  with  a  capital  of 
$100,000,  to  be  divided  into  2,000  shares  of  $50  each;  the 
stockholders  of  the  bank  to  be  a  body  corporate  by  the  name 
of  the  President,  Directors  and  Company  of  the  Bank  of 
Tecumseh.  That  the  bank  was  to  be  managed  by  the  president 
and  directors  of  the  raih-oad  company,  who,  before  the  bank 
went  into  operation,  were  to  convey  to  it  the  entire  stock  of  the 
railroad  as  security  for  the  payment  of  the  notes  and 
debts  *of  the  bank.  That  the  bank  was  established,  and  ['•■■36 1 
its  stock  all  taken  except  300  shares.  Tliat  in  January, 
1838,  Dan  B.  Miller  was  the  owner  of  1100  shares  of  this  stock, 
on  which  there  had  been  paid  in  the  sum  of  $15  on  each  share, 
amounting  in  all  to  the  sum  of  $16,500.  That  about  this  time 
the  complainant  Knapp  entered  into  a  negotiation  with  Miller 
for  the  purchase  of  his  stock  and  the  controlling  interest  in  the 
bank,  and  the  following  agreement  was  concluded  between 
Knapp  and  Miller,  viz:  Miller  was  to  transfer  his  1100  shares 
of  bank  stock,  and  a  majority  of  railroad  stock  to  Knap]),  who 
was  to  pay  him  $16,500  for  the  bank  stock,  and  $10,000  for  the 
railroad  stock,  making  in  all  the  sum  of  $26,500.  Bill  alleges 
that  the  bank  stock  was  at  the  time  below  par,  and  that  Knapp 
agreed  to  pay  the  $10,000  only  in  consideration  of  getting  a 
majority  of  the  railroad  stock,  which,  by  the  cliarter,  controlled 
the  bank  stock.  That  February  1st,  1838,  Knapp  took  the 
bank,  and  delivered  to  George  W.  Germain,  the  cashier  of  the 
bank,  a  certificate  of  deposit  of  the  Bank  of  Wisconsin  for  $70,- 
000,  and  a  joint  and  several  promissory  note  made  by  Samuel 
B.  Knapp  and  John  A.  Welles,  the  complainants,  and  Jira 
Payne,  for  $70,000,  dated  Januar}^  31st,  1838,  payable  to  the 
president,  directors  and  company  of  the  bank,  one  day  after 
date,  with  intere'st.     Fifty-eight  thousand  dollars  were  cred- 

47 


37  CASES  m  CHANCERY. 


Welles  V.  River  Raisin  &  Grand  River  R.  R.  Co. 


ited  on  the  certificate  of  deposit  as  having  been  settled  or 
paid,  and  then  the  note  for  $70,000  and  the  certificate  of  de- 
posit for  the  balance  due  upon  it,  which  was  $12,000,  were 
discounted  by  the  bank,  and  the  avails  credited  upon  its 
books  to  the  complainants  and  Payne.  That  the  cashier  of 
the  bank,  on  the  same  day,  delivered  to  Miller  promissory 
notes  and  other  securities,  which  had  been  discounted  by 
the    bank   for   his    benefit,  to    the    amount    of   $24,528.61, 

which,  with  the  sum  of  $453.39,  the  interest  and  prof- 
[*37]    its  *on  the  same,  was  charged  to  the  account  of  the 

complainants,  and  that,  at  the  request  of  Knapp,  Miller 
transferred  the  eleven  hundred  shares  of  bank  stock  to  the  fol- 
lowing persons,  who,'  as  the  bill  alleges,  held  the  same  in  trust 
for  Knapp  and  subject  to  his  order,  viz:  to  Henry  T.  Stringham, 
seven  hundred  shares,  on  which  there  had  been  paid  in  $10,500; 
to  the  complainant,  John  A.  Welles,  three  hundred  and  fifty 
shares,  on  which  there  had  been  paid  in  $5,250;  and  to  Jira 
Payne,  fifty  shares,  on  which  there  had  been  paid  in  $750; 
making  an  aggregate  of  payments  on  said  eleven  hundred  shares 
of  stock,  of  $16,500.  That  the  balance  of  the  $26,500,  after 
deducting  the  aforesaid  amount  of  promissory  notes,  etc.,  was 
paid  to  Miller  by  Knapp.  States  that  Miller  had  not  assigned 
a  majority  of  the  railroad  stock  to  Knapp;  that  he  had  never 
had  the  control  of  a  majority  of  the  railroad  stock,  and  that  the 
individuals  who  had  the  control  of  the  same,  at  the  time  the 
note  and  certificate  of  deposit  were  discounted,  were  the  direc- 
tors of  the  bank,  and  that  they  had  refused  to  transfer  the  same 
to  Miller,  or  to  the  complainants,  or  either  of  them,  or  to  ena- 
ble Miller  to  do  so.  Charges  that  the  promissory  note  and  cer- 
tificate of  deposit  were  discounted  and  received  by  Germain  in 
payment  of  the  installments  due  on  the  eleven  hundred  shares 
of  stock,  and  with  the  intent  of  providing  the  means  of  furnish- 
ing such  payment  and  other  payments  on  said  stock,  and  ena- 
bling Miller  to  withdraw  the  notes  and  money  which  had  been 
]-)aid  in  on  his  stock.  That  Germain  knew  of  the  contract  between 
Knapp  and  Miller;  that  he  knew  the  object  for  which  the  note 
and  certificate  were  ofi'ered  for  discount;  that  he  knew  Miller 

48 


FinST  CIKCUIT,  JULY,  1812.  3& 

Welles  V.  River  Raisin  &  Grand  River  R,  R.  Co. 

had  not  tlie  control  of  the  railroad  stock,  and  conld  not  procure 
it;  and  that,  with  a  knowlcdi^c  of  these  facts,  he  received  and 
discounted  the  note  and  certificate,  and  <^ave  up  to  Miller 
the  notes  and  other  securities  above  *stated.  That  the  [*382 
$70,000  promissory  note  was  made  by  the  complainants 
and  Payne,  solely  with  the  view  of  enabling  Knapp  to  have 
the  means  of  carrying  out  his  agreement  with  Miller,  and  of 
having  it  discounted  at  the  bank;  that  the  certificate  of  deposit 
was  obtained  for  a  like  purpose,  and  that  neither  of  the  com- 
plainants, at  the  time  the  note  and  certificate  were  discounted^ 
had  any  knowledge  or  notice  that  Miller  could  not  carry  out  his 
agreement  with  Knapp,  but  that  the  president  and  directors  of 
the  bank  had  full  knowledge  thereof  through  their  cashier, 
George  W.  Germain.  The  bill  further  states  that  Stringham, 
Welles  and  Payne  were  severally  credited  with  such  part  of  the 
avails  of  the  promissory  note  and  certificate  of  deposit,  as  was 
necessary  to  pay  the  remaining  installments  due  on  the  stock 
held  by  them  respectively,  and  that  the  three  hundred  shares 
of  stock  which  were  not  taken  when  the  bank  commenced  ope- 
rations, wei'e  subscribed  for  by  Payne,  and  stood  in  his  name, 
and  that  he  was  credited  with  $15,000  of  the  avails  of  the  dis- 
counted note  and  certificate  to  pay  for  it.  That  the  bank  had 
sued  Welles  on  the  $70,000  note,  and  the  complainants  filed 
their  bill  to  restrain  the  proceedings  at  law,  and  to  have  the 
note  and  certificate  of  deposit  given  up  and  canceled,  on  the 
ground  that  the  bank,  by  discounting  the  note  and  certificate 
of  deposit,  for  the  purposes  aforesaid,  had  exceeded  its  powers, 
and  violated  the  twenty-second  section  of  its  charter,  and  that 
Miller  was  guilty  of  fraud  in  undertaking  to  transfer  to  Knapp 
a  majority  of  the  railroad  stock,  when  it  was  not  in  his  power 
to  do  so,  and  that  the  directors  of  the  bank  had  notice  of  the 
fraud  through  Germain,  their  cashier,  when  the  note  and  cer- 
tificate were  discounted. 
The  defendant  put  in  a  general  demurrer  to  the  bill 

*T.  J2omei/n,  for  complainants.  [-30] 

A.  D.  Frasei\  for  defendants. 

Vol.  I.— 4  49 


40  CASES  i:n  chancery. 

"Welles  ?'.  River  Raisin  &  Grand  River  R.  R.  Co. 

The  Chancellor.  By  tlie  twenty-second  section  of  the  act 
incorporating  the  raih'oad  company,  and  authorizing  the  estab- 
lishment of  tlie  bank,  one-tenth  part  of  the  amount  of  each 
share  of  bank  stock  is  required  to  be  paid  in  specie  at  the  time 
of  subscribing,  and  the  balance  in  such  installments,  and  at 
such  times,  as  the  directors  should  require,  they  giving  sixty 
days'  notice  thereof,  and  no  one  installment  to  exceed  live  dol- 
lars on  a  share.  It  is  also  provided,  by  the  same  section,  "  that 
no  note  or  other  evidence  of  debt  shall  be  discounted  or  received 
by  the  directors,  in  payment  of  any  installments  called  in  or 
required  to  be  paid,  with  intent  to  provide  the  means  of  fur- 
nishing such  j)ayment,  or  with  intent  of  enabling  any  stock- 
holder to  withdraw  any  part  of  the  money  paid  in  by  him  on 
his  stock."  This  express  prohibition  against  discounting  a  note 
to  enable  a  stockholder  to  pay  in  his  stock,  was  designed  to  se- 
cure the  bill- holders  of  the  bank,  and  its  other  creditors,  against 
losses  which  they  might  otherwise  sustain  by  the  substitution 
of  stock  notes  in  the  place  of  actual  capital.  The  discounting 
of  the  note  and  certificate  of  deposit  for  the  purposes  stated  in 
the  bill,  viz.,  to  enable  Knapp  to  purchase  Miller's  stock,  and 
pay  the  bank  what  was  still  due  on  it,  (but  $15  having  been 
paid  on  a  share,)  and  to  enable  Payne  to  subscribe  and  pay  for 
thfi  three  hundred  shares  which  were  not  taken  when  the  bank 
was  put  into  operation,  was  a  clear  and  palpable  violation  of 
this  part  of  the  act,  and  a  fraud  upon  the  law  under  which  the 
bank  was  established.  Knapp  must  have  known  at  the  time 
that  the  officers  of  the  bank  had  no  right,  under  its  char- 
[■^iO]  ter,  to  discount  the  note  and  certificate  *for  such  a  pur- 
pose. The  whole  transaction  appears  to  have  been  gone 
into  to  give  him  the  ownership  and  control  of  the  bank.  But 
it  is  wholly  immaterial  whether  he  had  such  knowledge  or  not. 
The  act  of  incorporation  is  a  public  law,  of  which  he  w^as  bound 
to  take  notice.  Are  the  complainants,  on  this  statement  of 
their  case,  entitled  to  relief  in  this  Court?  In  Woodioorth  v. 
Jones,  2  Johns.  Cas.,  417,  the  parties  had  been  guilty  of  main- 
tenance, in  buying  and  selling  a  pretended  title  to  land,  and  it 
was  held  equity  would  not  relieve  either  of  them,  but  would 
50 


FIRST   CirwCUIT,  JULY,  1842.  41 

Welles  V.  River  Raisin  &  Grand  R.  R.  Co. 

leave  them  to  their  remedy,  if  any,  at  law.  Such  must  be  the 
decision  in  this  case.  To  give  relief  under  the  facts  and  circnm- 
stances  stated  in  the  bill,  would,  it  seems  to  me,  be  a  perversio)) 
of  justice,  and  an  encouragement  to  tJankers  to  commit  frauds 
upon  the  public,  through  the  improper  management  of  the 
moneyed  institntions  under  their  control. 

In  I>oU  V.  Rogers^  3  Paige  E.,  157,  Chancellor  "Walwortli 
says:  "  Wherever  two  or  more  persons  are  engaged  in  a  fraud- 
ulent transaction  to  injure  another,  neither  law  nor  equity 
will  interfere  to  relieve  either  of  those  persons,  as  against  the 
other,  from  the  consequences  of  their  own  misconduct." 

The  bill  cannot  be  sustained  as  a  bill  of  discovery  merely. 
When  a  bill  is  filed  for  relief,  the  discovery  is  ancillary,  and  a 
demurrer  that  is  good  to  the  relief  is  also  good  to  the  discov- 
ery. The  rule  is  well  established  in  England,  that,  if  the  com- 
plainant is  entitled  to  discovery  only,  and  the  bill  goes  on  to 
pray  relief  in  addition  to  the  discovery,  the  whole  bill  may  be 
demurred  to.  Coop.  Eq.  PL,  188;  3  Ves.  R.,  7;  10  id.,  553. 
The  rule  is  otherwise  in  the  State  of  New  York.  The  English 
rule,  however,  I  think  preferable,  as  it  keeps  up  a  proper  dis- 
tinction between  bills  for  relief  and  bills  for  a  discovery 
only.  The  Court  *should  not  be  required  to  examine  [*41] 
the  complainant's  case  twice  over;  first,  to  ascertain 
whether  he  is  entitled  to  relief;  and,  if  not,  then  to  see  whether 
the  bill  can  be  retained  as  a  bill  for  a  discovery  only. 

But  again.  Would  this  Court  aid  a  party  at  law,  to  whom 
it  had  expressly  refused  to  give  relief  in  this  Court, —  not  for 
want  of  jurisdiction,  but  on  account  of  the  illegality  of  the 
transaction?  There  can  be  but  one  answer  given  to  such  a 
question. 

Demurrer  allowed,  and  bill  dismissed  with  costs. 


51 


42  CASES  IN  CHANCERY 


Stevens  v.  Brown. 


Stevens  v.  Brown. 

Tlie  legal  title  to  lands  mortgaged  is  in  the  mortgagee,  who  may,  at  any  time 
after  default,  if  not  before,  unless  the  mortgage  provides  that  the  mortga- 
gor shall  retain  possession,  put  him  out  by  ejectment.' 

'When  the  mortgagor  comes  with  his  money  to  redeem,  the  moi-tgagee  must 
account  for  the  profits  of  the  mortgaged  premises,  of  which  the  crops  which 
he  may  have  appropriated  or  destroyed,  will  be  considered  a  part. 

This  was  a  motion  to  dissolve  an  injunction. 

The  bill  states  that  the  complainant,  in  1839,  mortgaged  cer- 
tain premises  to  the  defendant,  who,  after  the  mortgage  money 
became  due,  foreclosed  the  mortgage  at  law,  and,  on  May  14th, 
1841,  obtained  a  deed.  That  the  statutory  foreclosure  was 
irregular  and  void,  but  that  the  defendant,  by  virtue  of  the 
deed,  had  entered  upon  the  land,  and  commenced  ploughing  it, 
and  had  destroyed  the  complainant's  crops  growing  upon  it; 
and  that  the  complainant  was  ready  and  willing  to  pay  what 

was  due  on  the  mortgage. 
[*42]        *An  injunction  had  been  allowed,  restraining  the  de- 
fendant from  exercising  further  acts  of  ownership  over 
the  land,  which  injunction  the  defendant  now  moved  to  dissolve. 

S.  Barstow  &  A.  H.  Hanscoin,  in  support  of  the  motion. 

A.  Davidson,  contra. 

The  Chancellor.  In  disposing  of  this  motion,  it  is  not 
necessary  to  inquire  into  the  validity  of  the  statutory  foreclosure. 
Considering  the  defendant  in  the  light  of  a  mortgagee,  this 
'Court  will  not  prevent  him  from  taking  possession  of  the  mort- 
gaged premises.  The  legal  title  to  lands  mortgaged  is  in  the 
mortgagee,  who  may  at  any  time  after  a  default  in  the  payment 

'See  note  1  on  next  page;  Mundy  v.  Monroe,  1  Mich.,  68;  Hoffman  v. 
Harrington,  33  id,  392;  Dougherty  «.' Randell,  3  id.,  581;  Albright  t?.  Cobb, 
84  id.,  316. 

52 


FIRST  CIRCUIT,  AUGUST,  1842.  43 

Brown  v.  Chase. 

of  the  mortgage  money  or  any  part  thereof,  if  not  before,  where 
the  mortgage  does  not  provide  for  the  mortgagor's  retaining 
possession  until  that  time,  put  the  mortgagor  out  of  possession 
by  ejectment'  4  Kenfs  Com.  155,  and  cases  there  cited. 
At  law,  tlie  defendant  has  a  right  to  the  possession  of  the  mort. 
gaged  premises,  and  equity  will  not  take  from  him  that  right. 
it  is  sufficient  that  the  mortgagee  must  account  for  the  profits 
of  the  mortgaged  premises,  when  the  mortgagor  comes  with  his 
money  to  redeem ;  and  if  he  appropriates  to  his  ow^n  use,  or 
destroys  the  crops  growing  on  the  premises  when  he  takes  pos- 
session, he  must  account  for  them  as  a  part  of  the  profits. 
Injunction  dissolved. 


*Levi  Brown^  et  al.  v.   Thomas  Chase  et  al.    [*43] 

Before  appointing  a  receiver  to  take  charge  of  mortgaged  premises,  in  a  suit 
for  the  foreclosure  of  a  mortgage,  the  Court  must  be  satisfied,  first,  that 
the  premises  are  insufficient  to  pay  the  debt;  and,  second,  that  the  party 
personally  liable  is  insolvent,  so  that  an  execution  for  the  balance  due  after 
sale  would  be  unavailing. 

A  security  is  presumed  sufficient,  until  the  contrary  is  shown. 

A  neglect  to  apply  for  a  receiver  within  a  reasonable  time,  is  construed  into  a 
waiver  of  the  right  to  make  such  application. 

^  Subsequent  to  this  decision,  on  March  8th,  1843,  it  was  enacted  by  the 
Legislature  of  this  State,  "  lliat  no  action  of  ejectment  shall  hereafter  be 
maintained  by  a  mortgagee,  or  his  assigns  or  representatives,  for  the  recov- 
ery of  the  mortgaged  premises,  until  after  a  foreclosure  of  the  mortgage, 
and  the  time  of  redemption  thereof  shall  have  expired."  Latcs  1843,  p. 
139,  (Comp.  Laws,  §  6263). 

This  statute  has  been  held  unconstitutional  as  to  mortgages  previously  exe- 
cuted: Mundy  V.  Monroe,  1  Mich.,  68;  Blackwood  t>.  Van  Vleet,  11  id..  252; 
Newton  r.  McKay,  30  id.,  380. 

As  to  the  effect  of  this  statute,  see  Baker  v.  Pierson,  5  Mich.,  456;  Caruthers 
V.  Humphrey,  12  id.,  270;  Crippen  v.  Morrison,  13  id.,  23;  Newton  v.  Sly,  15 
id.,  91;  Hogsett  v.  Ellis,  17  id.,  351;  Newton  v.  McKay,  30  id.,  380;  Humphrey 
v.  Hurd,  29  id.,  44. 

53 


U  CASES  I^  CHANCERY. 

Brown  v.  Chase. 

This  was  a  petition  for  the  appointment  of  a  receiver  of  the 
rents  and  profits  of  mortgaged  premises. 

The  complainants  filed  their  bill  to  foreclose  a  mortgage 
August  13th,  1839.  Davis,  one  of  the  defendants,  put  in  his 
answer  April  3d,  1841,  admitting  the  rights  of  complainants, 
and  the  amount  due  on  the  mortgage,  and  the  bill  was  taken  as 
confessed  against  the  other  defendants.  The  amount  due  May 
10th,  1841,  for  principal  and  interest,  was  $16,465.87.  The 
-petition  stated  that  Chase,  the  mortgagor,  had  been  decreed  a 
bankrupt  under  the  act  of  Congress,  and  that  the  mortgaged 
premises,  with  the  appurtenances,  were  a  slender  and  scanty 
security  for  the  amount  due  on  the  mortgage.  To  show  the 
value  of  the  premises,  numerous  afiidavits  were  read. 

JS.  B.  Harrington^  for  petitioners. 

Wm.  Hale  &  H.  N.  Walker,  contra. 

The  Chancellor.  A  receiver  of  the  rents  and  profits  of 
mortgaged  premises  is  sometimes  appointed  on  the  peti- 
[*44]  tion  of  the  mortgagee,  after  he  has  filed  his  bill  to  *fore- 
close  the  morto^aace.  The  Court  must  be  satisfied,  be- 
fore  making  the  appointment,  that  the  mortgaged  premises  are 
insufficient  to  pay  the  mortgage  debt,  and  that  the  mortgagor, 
or  other  party  to  the  suit  who  is  personally  liable  for  its  pay- 
ment, is  insolvent,  or  out  of  the  jurisdiction  of  the  Court,  so 
that  an  execution  against  him  for  the  balance  that  should  re- 
main due  after  a  sale  of  the  mortgaged  premises,  would  be 
unavailing.  Chase,  the  mortgagor,  who  is  personally  liable  for 
the  payment  of  the  debt,  has  been  decreed  a  banki-upt  on  his 
own  petition.  So  far  the  complainants  have  made  out  their 
case;  but  they  have  failed  to  satisfy  the  Court  that  the  mort- 
gaged premises  are  insufficient  to  pay  the  mortgage  debt.  The 
security  was  one  of  their  own  taking,  and  the  presumption  is 
that  it  is  sufficient,  until  the  contrary  appears.  To  sustain  their 
application,  they  have  produced  the  affidavits  of  fifteen  difl'er- 
ent  persons  to  the  value  of  the  mortgaged  premises.     The  sev- 

54 


SECOXD  CIRCUIT,  AUGUST,  1842.  45 

Ward  V.  Jewett. 

end  valuations  of  these  individuals  range  from  $14,500,  to 
§18,000.  On  the  other  hand,  the  defendants  have  produced  the 
affidavits  of  sixteen  or  more  individuals,  whose  several  valua- 
tions range  from  $22,000,  to  $30,000.  A  majority  of  the  per- 
sons last  mentioned,  value  the  premises  at  $25,000  or  more. 
The  Court  cannot  say,  under  such  circumstances,  that  the  mort- 
gaged premises  are  insuffi-jient  security. 

The  complainants  have  come  too  late  with  this  motion. 
They  filed  their  bill  August  13th,  1839,  nearl}^  three  years  ago, 
and,  for  aught  that  appears  from  tiieir  petition,  might,  with  due 
diligence,  have  obtained  a  decree  long  before  this  time,  and 
had  the  mortgaged  ])remises  sold.  If  they  were  entitled  to  a 
i-eceiver,  their  neglect  to  apjjly  for  his  appointment  at  an  earlier 
day,  slK)uld  be  construed  as  a  waiver  of  their  risht. 

Motion  denied. 


*Geokge  Ward  v.  Samuel  P.  Jewett.     [=-=45] 

Where  a  defendant  permits  a  bill  to  be  taken  as  confessed  against  him,  it 
is  an  admission  on  his  part  of  every  material  fact  stated  in  it.^ 

If  the  defendant  wishes  to  controvert  any  allegations  in  the  bill,  he  should 
put  them  in  issue  by  plea  or  answer,  and  neglecting  this,  he  is  precluded 
from  introducing  evidence  for  that  purpose  before  the  Master,  on  a  refer- 
ence. 

Where  a  Master  erroneously  refuses  to  receive  testimony,  the  proper  way  to 
con-ect  it  is  by  motion  to  the  Court  for  an  order  compelling  him  to  receive 
the  evidence,  and  not  by  excepting  to  his  report.'^ 

1  f  the  allegations  in  a  bill  are  sufficiently  clear  and  positive  to  establish  a  fact 
without  proof,  it  need  not  de  adduced;  otherwise,  where  they  are  vague 
and  indefinite. 

Where  complainant  was  compelled  by  the  improper  conduct  of  the  defendant, 
and  \vithout  fault  of  his  own,  to  come  into  Court  for  a  settlement  of  part- 
nership accounts,  he  was  held  entitled  to  costs. 

'  And  defendant  cannot,  in  such  case,  be  charged  with  costs  of  testimony  in 
support  of  the  bill.     Covell  r.  Cole,  16  Mich.,  223. 
■■'  See  Schwarz  r.  Scars,  ante,  19  and  note. 

55 


46  CASES  IN  CHANCEEY. 

Ward  V.  Jewett. 

This  was  on  exceptions  to  a  Master's  report  on  a  reference  to 
take  and  state  an  account  between  the  parties  as  copartners. 

The  Master,  in  stating  the  account  between  defendant  and 
the  copartnership,  charged  him  with  $79.01,  the  amount  of  a 
judgment  which,  it  was  stated  in  the  bill  of  complaint,  he  had 
received  for  the  copartnership.  The  defendant  offered  to  prove 
that  the  money  was  received  by  him  on  his  own  account,  and 
not  for  the  copartnership ;  but  the  Master  refused  to  hear  evi- 
dence for  that  purpose,  as  the  bill,  which  had  been  taken  as 
confessed,  alleged  that  he  had  received  it  on  a  copartnership 
debt.  The  defendant  excepted  to  so  much  of  the  Master's  re- 
port as  charged  him  with  the  $79.01;  Jirst,  because  the  Master 
refused  to  hear  the  evidence;  and,  second,  because  he  allowed 
the  charge  on  the  allegations  of  tli«  complainant's  bill,  without 
other  proof. 

p46]    *  G.  Miles,  for  complainant. 

0.  Hawkins,  for  defendant. 

The  Chaiicelloe.  The  defendant  was  properly  charged  with 
the  $79.01.  Instead  of  answering  the  bill,  he  let  it  be  taken  as 
confessed.  That  was  an  admission  on  his  part  of  every  mate- 
rial fact  stated  in  it.  If  he  had  wished  to  controvert  the  truth 
of  any  of  the  allegations  of  the  bill,  he  should  have  put  them 
in  issue  by  plea  or  answer;  and  not  having  done  so,  he  was 
precluded  from  introducing  evidence  for  that  purpose  before 
the  Master. 

When  the  Master  has  erroneously  refused  to  receive  testi- 
mony, the  way  to  correct  the  error  is  by  a  motion  to  the  Court 
for  an  order  requiring  him  to  receive  it,  and  not  by  exceptions 
to  the  report.     Schioars  v.  Sears,  ante,  19. 

The  only  remaining  question  is,  whether  the  allegations  of 
the  bill  were  sufficient  to  charge  the  defendant,  without  further 
proof.  The  rule  on  this  subject  is  this:  If  the  allegations  are 
sufficiently  clear  and  positive  to  establish  a  fact  without  other 
proof,  it  need  not  be  adduced;  but  if  they  are  vague  and  indefi- 
nite, further  proof  should  be  given,  Williams  v.  Corwin, 
56 


SECOND  CIRCUIT,  AUGUST,  1842.  47 

Ward  V.  Jewett. 

Hopk.  R.,  471.  On  looking  into  the  bill,  I  am  satisfied  the 
allegations  are  sufficient.  The  bill  states  that  the  defendant 
received  of  Josiah  P.  Jewett,  who  owed  the  copartnership  be- 
tw^een  two  and  three  hundred  dollars,  a  promissory  note  against 
one  Edward  F.  Gay,  for  $75,  or  thereabouts,  to  be  applied  on 
the  partnership  debt,  and  that  he  subsequently  obtained  a  judg- 
ment for  $75.33  on  the  note,  which  judgment  was  collected  by 
him,  and  applied  to  his  own  use.  These  facts  are  so  clearly 
stated  in  the  bill,  as  to  leave  no  doubt  the  defendant  would 
have  put  them  in  issue,  if  he  could  have  denied  them 
under  oath.  lie  must  have  been  aware  of  *the  extent  [*47] 
of  the  admission  he  was  making  when  he  permitted  the 
bill  to  be  taken  as  confessed  against  him. 

Exceptions  overruled,  and  Master's  report  confirmed 

A  question  subsequently  arose  concerning  the  costs  in  the 
suit,  when  the  following  opinion  was  delivered  by  the  Court. 

The  Chancelloe.  It  appears  by  the  original  and  supple- 
mental bills,  both  of  which  have  been  taken  as  confessed,  that 
the  defendant  w^as  altogether  in  fault ;  first,  in  refusing  to  apply 
the  money  he  had  received  on  the  judgment  against  Gay,  upon 
the  copartnership  debt  due  from  Josiah  P.  Jewett;  and,  sec- 
ondly, in  taking  and  retaining  possession  of  the  books  of  ac- 
count mentioned  in  the  supplemental  bill,  which  was  the  cause 
of  the  filing  of  that  bill.  The  complainant  was  compelled  by 
the  improper  conduct  of  the  defendant,  and  without  any  fault 
of  his  own,  to  come  into  this  Court  for  a  settlement  of  the  co- 
partnership business;  and  he  must  recover  his  costs  against  the 
defendant.     Caldwell  v.  Leiher,  7  Paige  P.,  483. 


57 


48  CASES  m  CHANCEPwY 


Sawyer  r.  Sawyer. 


[*48]   ^Haeeiet  Sawyer  v.  Leandee  Sawyee. 

Practice  in  clianceiy  in  regard  to  tlie  impeacliment  of  witnesses  the  same  as 
at  law. 

Before  the  credit  of  a  witness  can  be  impeached  by  proof  of  inconsistency  in 
his  declarations,  a  foundation  must  be  laid  by  questioning  him  on  cross- 
examination  as  to  his  former  statements,  that  he  may  have  an  opportunity 
for  explanation.^ 

Having  laid  this  foundation,  a  party  may  proceed  without  exhibiting  articles 
of  impeachment. 

Each  party  must  pay  for  taking  down  the  cross-examination  of  his  adversary's 
witnesses,  as  well  as  the  direct  examination  of  his  own. 

A  mtness  having  been  examined,  after  his  examination  is  closed  cannot  be 
exammed  as  to  the  same  facts  without  an  order  of  the  Court ;  but  he  may 
be  as  to  other  facts,  or  new  matter  arising  out  of  the  testimony  of  other 
witnesses. 

Divorce  will  not  be  granted  upon  the  admission  of  a  party  unsupported  by 
evidence,  but  the  amount  of  evidence  required  varies  with  the  danger  of 
collusion.^ 

This  was  a  petition  for  divorce  from  the  bonds  of  matrimony, 
on  account  of  extreme  cruelty. 

Miles  <&  Wilson,  for  petitioner 

.  Mundy  (&  Fletcher,  for  defendant. 

The  Chancellor.  There  are  several  questions  of  practice 
which  it  is  necessary  to  decide,  before  proceeding  to  the  merits 
of  the  case. 

1.  Some  of  the  defendant's  witnesses,  on  their  cross-exami- 
nation, were  questioned  as  to  statements  previously  made  by 

^  He  must  also  be  examined  as  to  the  time,  place  and  person  involved  in  the 
supposed  contradiction.     Smith  v.  The  People,  2  Mich.,  415. 

A  witness  cannot  be  impeached  by  proof  of  contradictory  statements  concern- 
ing immaterial  matters  about  which  he  has  been  questioned.  Dunni\  Dunn, 
11  Mich.,  284.     See,  also,  Fisher  v.  Hood,  14  Mich.,  189. 

2  Nor  will  a  decree  be  rendered  by  consent  without  evidence.  Robinson  r. 
Robinson,  16  Mich.,  79. 

58 


SECOND   CIRCUIT,  AUGUST,  1842.  49 

Sawyer  v.  Sawyer. 

them  at  variance,  or  inconsistent  with  what  they  had  sworn  to 
on  their  direct  examination,  lor  the  purpose  of  imj^eaching 
them. 

i2.  Witnesses  w'ere  examined  by  the  petitioner  to  im- 
peach* tlie  defendant's  witnesses,  without  filing  articles,    ["49] 
and  obtaining  an  order  of  the  Court  for  that  purpose. 

3.  Witnesses  who  had  been  examined  by  the  petitioner, 
were  afterw^ards  re-examined  to  impeach  the  defendant's  wit- 
nesses, without  any  order  of  the  Court  for  their  re-examina- 
tion. 

These  several  objections  were  taken  before  the  Master,  and 
and  renewed  at  the  hearing  by  the  defendants'  counsel. 

The  practice  in  this  Court  in  the  examination  of  witnesses, 
differs  essentially  from  the  practice  of  the  Court  of  Chancery 
in  England.  By  the  English  practice  the  examination  is  in 
secret,  neither  the  parties  nor  their  counsel  being  permitted  to 
be  present;  and  the  examination  is  on  written  interrogatories. 
With  us,  the  examination  is  in  the  presence  of  the  parties,  and 
their  counsel,  and  such  other  persons  as  choose  to  attend;  and 
the  witnesses  are  examined  and  cross-examined  by  the  counsel 
of  the  respective  parties,  as  in  a  trial  at  law,  in  the  presence  of 
the  Master  who  takes  down  their  testimony.  The  benefits  of 
this  mode  of  examination  more  than  counterbalance  its  evils. 
It  is  better  calculated  to  elicit  truth  than  a  secret  examination 
on  interrogatories  drawn,  as  they  frequently  must  be,  without 
a  full  knowledge  of  what  the  witness  knows;  and  it  secures 
more  fully  the  benefits  of  a  cross-examination,  which  must 
ever  be  defective  when  on  interrogatories  drawn  up  without  a 
knowledge  of  what  the  witness  has  sworn  to  upon  his  direct  ex- 
amination. Nor  can  written  interrogatories  be  as  eftectual  in 
extracting  the  truth  from  an  unwilling  witness  as  a  viva  voce 
examination,  where  the  questions  may  be  so  varied,  and  with 
such  nice  shades  of  difference  as  to  deprive  the  witness  of  every 
possible  loophole  to  evade  telling  the  truth,  without  commit- 
ting perjury,  and  subjecting  himself  to  a  criminal  pros- 
ecution. These  are  some  of  the  advantages  attending  *our  [*50] 
practice,  whatever  may  be  its  defects;  but  its  benefits 

59 


51  CASES  IN  CHANCEEY. 

Sawyer  v.  Sawyer. 

would,  to  some  extent,  be  lost,  if  a  witness  could  not  be  asked 
on  liis  cross-examination,  whether  he  had  not  represented  dif- 
ferently, at  other  times,  the  facts  to  which  he  had  sworn  upon 
his  direct  examination.  This  is  everj'day's  practice  at  law. 
The  credit  of  a  witness  at  law  cannot  be  impeached  by  proof 
that  he  has  said  or  declared  anything  inconsistent  with  the 
evidence  he  has  given,  unless  a  foundation  for  the  introduction 
of  such  evidence  is  first  laid,  by  asking  him  upon  his  cross- 
examination  whether  he  has  not  made  such  statement  or  declar- 
ation, that  he  may  have  an  opportunity  to  explain  his  conduct. 
The  Queen's  Case,  2  Brod.  &  Bing.,  310.  (s!  C,  6  Eng.  Com. 
Law  R,  112.y 

A  dififerent  rule  in  this  Court  would  have  one  of  two  effects; 
it  would  either  take  from  a  party  his  right  to  impeach  a  witness 
in  this  way,  or  from  the  witness  his  right  to  admit  under  oath 
the  declarations  or  statements  he  had  made,  and  to  state  his 
reasons  for  making  them,  thereby  rendering  it  unnecessary  in 
all  cases  to  examine  other  witnesses  to  prove  the  fact.  Under 
our  practice  the  rule  at  law  on  this  subject  should  be  the  rule 
of  this  Court. 

The  petitioner,  having  laid  a  foundation  for  impeaching  tlie 
defendant's  witnesses,  was  at  liberty  to  do  so  without  exhibiting 
articles  for  that  purpose.  The  English  practice  has  never  been 
adopted  by  this  Court.  An  instance  is  not  known,  in  which 
articles  to  impeach  the  credit  of  a  witness  have  been  exhibited. 
The  reason  does  not  exist  under  our  practice,  that  obtains  un- 
der the  practice  of  the  English  Court  of  Chancery,  where  a 
party,  from  the  secret  manner  in  which  the  evidence  is  taken, 
cannot  know  till  publication  what  his  adversary's  witnesses 
have  sworn  to,  and  it  is  then  too  late  for  him  to  take  further 
proofs  in  the  cause  without  leave  of  the  Court.  Some 
[*51]  evils,  it  is  *true,  may  grow  out  of  this  practice.  It  may 
open  too  wide  a  door  for  cumbering  a  cause  with  volum- 
inous testimony,  much  of  which  may  not  be  worth  the  taking, 

^See  also  further,  1  Stark.  Ev.,  183;  Angus  v.  Smitli,  1  Mood.  Sc  Malk. 
473;  (S.  C.  Eng.  Com.  Law.  R.,  360.) 

60 


SECOND  CIRCUIT,  AUGUST,  1842.  53 

Sawyer  v.  Sawj-er. 

{iiul  ill  that  way  retard  the  dispatch  of  Ijusiness  by  tlie  Court. 
The  expense  of  taking  testimony  will,  however,  to  some  ex- 
tent, check  this  evil.  Each  party  must  pay  for  taking  down  the 
cross-examinatioij  of  his  adversary's  witnesses,  as  well  as  the 
direct  examination  of  his  own;  and  a  protracted  direct  or  cross- 
examination  on  immaterial  facts,  by  either  party,  would  only 
increase  his  expenses,  without  occasioning  a  corresponding 
l)cnefit  to  himself  or  injury  to  his  opponent. 

After  a  witness  has  been  once  examined  and  his  examination 
has  been  closed,  he  cannot  be  re-examined  to  the  same  facts, 
unless  by  order  of  the  Court;  but  he  may  be  re-examined  as  to 
facts  to  which  he  has  not  been  examined,  or  to  new  matter  aris- 
ing out  of  the  testimony  of  other  witnesses.  1  Iloff.  Ch.  Prac, 
464;  Sioinford  v.  Ilovne,  5  Madd.  E.,  379. 

Having  disposed  of  these  preliminary  questions,  I  proceed  to 
the  merits  of  the  case.  Two  objections  were  made  by  the  de- 
fendant's counsel  to  granting  the  prayer  of  the  petitioner;  firsts 
to  the  character  of  the  evidence,  which,  it  was  said,  consisted 
entirely  of  the  admissions  or  confessions  of  the  defendant,  and 
that  the  Court  should  not  grant  a  divorce  on  such  testimony, 
unsupported  by  other  evidence;  secondly^  that  the  petitioner 
was  as  much  to  blame  as  the  defendant,  and  was  therefore  en- 
titled to  no  relief,  the  statute  providing  that  no  divorce  shall  be 
granted  where  the  party  complaining  is  guilty  of  the  crime  set 
forth  in  his  or  her  petition. 

In  Baxter  v.  Baxter,  1  Mass.  E,.,  345,  it  was  held  that  the 
confessions  of  the  party,  uncorroborated  by  other  circumstances, 
were  inadmissible  to  prove  the  fact  of  adultery. 
*In  Holland  v.  Jlolland,  2  Mass.  R.,  154,  which  was  [*52] 
also  a  case  of  divorce  for  adultery,  the  Court  say:  "  The 
rule  is  established  by  uniform  practice  that  the  confession  of 
the  party,  unsupported  by  other  evidence,  is  not  suJSicient  to 
ground  a  divorce  upon."  In  Betts  v.  Betts,  1.  J.  C.  R.,  197, 
which  was  a  bill  for  a  divorce,  charging  the  defendant  with 
adultery  and  cruel  treatment,  the  Chancellor  said,  it  "  is  well 
settled,  that  the  confessions  of  the  party  are  admissible  on  a 
charge  of  adultery,  if  su2)j>orted  hij  other  ;proof;   but  unless 

61 


53  CASES  IX  CIIAXCEEY. 

Sawyer  r.  Sawyer. 

corroborated  by  other  evidence  and  circumstances,  they  are  not 
sufficient  ground  for  a  decree."  In  cases  of  adultery,  the  right 
to  a  divorce  consists  in  the  proof  of  a  single  fact,  and  if  the 
confessions  of  the  party  were  to  be  received  as  sufficient  proof, 
there  would  be  danger  of  collusion.  It  is  to  guard  against 
this,  that  other  proof  is  required  in  corroboration  of  the  defend- 
ant's confessions.  The  same  rule  must  aj^ply  to  confessions  as 
evidence  in  all  other  cases  of  divorce  from  the  bonds  of  matri- 
mony, with  this  limitation,  that,  where  tliere  is  less  danger  of 
collusion,  or  it  could  not  be  practiced  so  easily,  the  corroborat- 
ing facts  or  circumstances  need  not  be  of  so  decisive  a  charac- 
ter. The  object  of  the  rule  is  to  guard  against  collusion,  not 
to  obstnict  the  administration  of  justice.  Where  the  circum- 
stances of  the  case  are  such  as  to  repel  all  suspicion  of  collu- 
sion, and  leave  in  the  mind  of  the  Court  no  doubt  of  the  truth 
of  the  confessions,  it  should  act  accordingly.  The  evidence  in 
the  present  case  is  voluminous,  and  somewhat  contradictory. 
But,  if  the  defendant's  admissions,  made  at  different  times  and 
to  different  individuals,  under  circumstances  that  repel  every- 
thing like  collusion,  are  worthy  of  credit,— and  it  seems  to  me 
there  can  be  no  doubt  on  the  question, — his  cruel  treatment  of 

the  petitioner  is  fully  made  out.  His  admissions  of 
[*53]    personal  violence  to  her,  both  before  and  after  *she  had 

left  him  the  first  time  on  account  of  his  ill  treatment, 
are  clearly  proved;  and  corroborated  in  one  instance  by 
marks  of  violence  seen  upon  her  face,  to  which  several  witnesses 
have  testified.  This  was  before  she  left  him  the  first  time;  and, 
when  she  left  him  the  last  time,  it  was  on  account  of  personal 
violence.  His  confession  of  this  fact,  as  well  as  of  abusing  her, 
and  using  indecent  and  cruel  language  to  her,  is  proved  by 
several  witnesses.  Mr.  Lerned  in  his  testimony  says,  that  he 
admitted  he  kicked  her  on  the  morning  she  left  his  house,  and 
that  he  turned  her  out  of  doors. 

The  defendant  has  failed  to  show  that  she  was  guilty  of  like 
cruel  treatment  of  him.  The  evidence  of  the  only  witness  exam- 
ined for  that  purpose,  is  too  inconsistent  with  the  previous  state- 
ments made  by  the  same  witness  to  third  persons,  to  entitle  it 

62 


FIRST  CIRCUIT,  OCTOBER,  1842.  54 

EtlwarJs  v.  Hulbert. 

to  iniicli  credit,  supposing  it  in  otlier  respects  to  be  snfficient  t<» 
make  out  a  defense  under  the  statute,  wliich  I  tliink  is  not  the 
case. 

The  Court  will  reserve  the  question  whether  the  decree  to  be 
entered  in  this  cause  shall  be  for  a  divorce  from  the  bonds  of 
matrimony,  or  from  bed  and  board  only,  until  the  next  term  of 
the  Court.  This  is  done,  as  there  is  doubt  whether  the  Court 
can  grant  alimony,  in  case  a  decree  should  l)e  entered  dissolving 
the  bonds  of  matrimony,'  and  that  the  parties  may  have  an 
opportunit)'  to  adjust  their  difficulties  l)etween  themselves  before 
that  time,  should  they  be  disposed  to  do  so. 


*Thomas  Edwards  v.  John  Hulbert.         ["54] 

Whero,  by  treaty  between  the  United  States  and  the  Ottawa  and  Chij-ipewa 
Indians,  the  sum  of  $300,000  was  set  apart  to  pay  claims  against  tlie  In- 
dians, to  be  allowed  by  commissioners,  and,  E.  having  a  claim  against 
them,  H.  procured  its  allowance  to  himself  as  purchaser  of  the  claim,  when 
he  had  no  right  to  it,  and  received  the  money,  it  was  held,  that  E.  could 
not  sustain  an  action  at  law  against  H.  for  the  money,  but  that  in  equity 
H.  would  be  considered  a  trustee  for  E.  to  whom  the  money  of  right  be- 
longed. 

Where  a  defendant  who  should  have  demurred  to  discovoiy  only,  demurs  to 
both  discovery  and  relief,  his  demurrer  will  be  overruled.^ 

Tins  was  a  demurrer  to  the  bill  of  complaint. 

The  bill  states  that  the  complainant  was  an  Indian  trader  at 
the  Saut  de  Ste  Marie.  Tliat  in  182G  he  had  a  claim  of  $340 
against  the  Ottawa  and  Cliippewa  Indians,  for  goods  sold  to 
them,  and  for  goods  wrongfully  taken  by  them.  That,  in  1S3C, 
a  treaty  was  made  between  these  Indians  and  the  Government 

'  The  law  is  now  amended  so  that  alimony  may  be  granted  "upon  divorce 
for  adultei7,  committed  by  the  husband,  or  on  account  of  his  being  sentenced 
to  confinem  nt  to  hard  labor,  or  for  any  other  cause.     Laivs  1843,  p.  7. 

*  Burpee  r.  Smith,  post,  327. 

C3 


55  CASES  IN  CHANCEEY. 

Edwards  v.  Hulbert. 

of  tlie  United  States,  providing,  among  other  things,  that  the 
Indians  should  pay  all  proper  and  just  claims  existing  against 
them,  which  should  be  allowed  by  commissioners  to  be  appointed 
by  the  Government;  and  $300,000  was  set  apart  by  the  treaty 
for  that  purpose.  In  September,  1836,  the  commissioners  met 
at  Mackinac,  and  the  defendant  procured  the  allowance  of  the 
aforesaid  claim  of  $340  to  himself,  in  the  following  words:  "Of 
the  total  loss  by  Thomas  Edwards,  in  1826,  amounting  to  $340, 
which  comes  to  the  claimant  by  purchase,  and  there  is  evidence 
the  articles  were  supplied  to  the  Indians  in  the  ceded  district. 
It  must  therefore  be  allowed."  The  bill  charges  that  the  defend- 
ant had  received  the  $340  and  applied  it  to  his  own  use,  and 
that  he  had  no  right  to,  or  interest  whatever  in  the  claim, 
[*55]  *wliich  belonged  to  the  complainant,  but  which  the  de- 
fendant had  procured  to  be  allowed  to  himself  by  the 
commissioners.     The  defendant  demurred. 

J.  F.  Joy-,  in  supj)ort  of  the  demurrer. 

-/.  S.  Ahhott  (&  A.  D.  Fraser,  contra. 

The  CnANCELLOR.  The  first  objection  taken  to  the  bill  is 
that  the  complainant  has  a  remedy  at  law.  I  know  of  no  case, 
and  none  was  cited  by  the  defendant's  counsel,  in  which  a  court 
of  law  has  carried  the  action  for  money  had  and  received  so 
far  as  to  reach  the  com23lainant's  case.  The  sum  of  $300,000 
was  set  aj^art  by  the  treaty  to  pay  such  claims  against  the  In- 
dians as  should,  on  examination,  be  allowed  by  the  commis- 
sioners. A  mere  claim  against  the  Indians  could  give  no  right 
or  interest  in  this  fund,  to  acquire  which,  the  party  must  have 
his  claim  allowed  by  the  commissioners,  and  then,  and  not  be- 
fore, he  would  have  an  interest  in  the  fund  to  the  amount 
allowed  him.  The  $340  were  allowed  to  the  defendant,  and 
not  to  the  complainant,  and,  as  it  is  the  allowance  by  the  com- 
missioners, and  not  the  pre-existing  debt  against  the  Indians, 
that  in  law  gives  a  right  to  the  money,  I  think  courts  of  law 
would  have  to  go  much  further  than  they  have  heretofore  gone, 
to  give  redress  in  such  a  case.  If  the  claim  had  been  allowed 
64 


FIRST  CIRCUIT,  OCTOBER,  1842.  56 

Bronson  v.  Green. 

to  the  complainant,  and  the  defendant  had  received  the  money, 
the  case  would  have  been  different.  The  complainant's  remedy 
would  then  have  been  at  law,  and  not  in  this  Court.  Taking 
the  facts  as  stated  in  the  bill  to  be  true,  the  defendant  must 
be  considered  in  ecjuity  in  the  light  of  a  trustee,  and  as  having 
presented  the  claim  to  the  commissioners,  obtained  its  allow- 
ance, and  received  the  money  upon  it,  in  trust  for  the  com- 
plainant. 

*Another  objection  is,  that  the  bill  charges  the  defend-  [*56] 
ant  with  an  indictable  ofifense,  in  obtaining  money  under 
false  pretenses.  I  do  not  think  so;  and,  even  if  it  did,  the 
demurrer  is  too  broad  for  the  defendant  to  avail  himself  of  the 
objection.  It  is  to  both  discovery  and  relief,  whereas  it  should 
have  been  confined  to  the  discovery  alone,  and  to  such  parts 
of  the  bill  as  implicated  the  defendant,  JRohinson  v.  Smithy 
3  Paige  R.  231 ;  Kuypers  v.  The  Reformed  Dutch  Churchy 
6  Paige  R.  570. 

Demurrer  overruled. 


Oliver  Bronsoj^^  et  al.  v.  Cogswell  K.  Green  et  at. 

Contracts  are  to  be  construed  according  to  the  intention  of  the  parties,  as 
expressed  in  them.' 

AVhere  several  contracts  are  executed  by  the  same  parties  at  the  same  time, 
and  relating  to  the  same  matter,  they  are  to  be  construed  together.' 

\VTiere  one  writing  refers  to  another,  the  intention  of  the  parties  is  to  be 
gathered  from  the  two  construed  together. 

Where  one  contract  grows  out  of  another  to  which  it  refers,  and  both  are  in 
writing,  the  first  may  be  looked  into  to  ascertain  the  intention  of  the  par- 
ties in  the  latter,  if  it  is  not  clearly  expressed  therein. 

^  See  Bird  v.  Hamilton,  post,  361;  Norris  v.  Showernian,  post,  206;  s.  c.  2 
Doug.,  16. 

« Norris  V.  Hill,  1  Mich.,  202;  Dudgeon  r.  Haggart,  17  id.,  275,  280,  where 
the  cases  are  fully  collected. 

In  construing  an  instrument,  the  whole  of  it  should  be  considered  together, 

YoL.  I. — 5  05 


57  CASES  m  CHAXCEEY. 

Bronson  v.  Green. 

This  was  a  hearing  on  demurrer  to  a  bill  for  specific  per- 
formance. 

The  bill  states  that  on  IS'ovember  5th,  1835,  articles  of  agree- 
ment were  entered  into  between  the  complainants  and  Green,  one 
of  the  defendants,  for  the  purchase  of  real  estate  in  Michigan, 
Wisconsin,  Indiana,  and  Illinois;  that  the  complainants 
[*57]  were  to  furnish  the  money,  and  Green,  "^as  their  agent,  was 
to  invest  it  in  the  purchase  of  such  real  estate  as  he  might 
select,  the  title  to  which  was  to  be  taken  in  the  name  of  the  com- 
plainants. Green  was  to  have  charge  of  the  lands  after  they  had 
been  purchased,  pay  the  taxes  thereon,  and  sell  them  to  the  best 
advantage  for  the  complainants,  and  close  his  agency  within  five 
years,  unless  further  time  should  be  given  him  for  that  purpose. 
That,  for  his  services,  he  was  to  receive  one-third  of  the  profits, 
after  repaying  to  the  complainants  the  money  advanced,  with 
interest  and  expenses ;  and  he  guarantied  to  the  complainants 
the  repayment  of  all  moneys  invested  by  him,  and  all  costs, 
charges  and  disbursements  incident  to  the  investment,  with  in- 
terest on  one-third  part  thereof,  at  the  expiration  of  five  years. 
Green  was  to  pay  over  to  the  complainants,  from  time  to  time, 
all  moneys  received  by  him  on  sales,  etc.,  which  moneys  were 
to  be  applied  by  them  in  payment  of  what  they  had  advanced; 
and  all  questions  that  might  arise  concerning  the  management 
or  disposition  of  the  lands,  or  the  manner  of  conducting  sales, 
whether  for  cash  or  credit,  were  to  be  settled  by  a  majority  in 
interest.  On  the  first  day  of  January,  1839,  the  complainants 
had  advanced  to  Green  on  the  aforesaid  contract,  including 
interest,  $12,310.60.  On  the  24th  day  of  June,  in  the  same 
year,  the  parties  entered  into  another  contract,  a  part  of  which 
is  in  these  words:  "  Memorandum  of  an  agreement  entered  into 
this  24:th  day  of  June,  A.  D,  1839,  between  Oliver  Bronson  and 

and  a  construction  of  a  detached  part,  without  reference  to  the  rest,  is  erro- 
neous. Norris  v.  Showerman,  ])ost,  206,  s.  c,  2  Doug.,  16;  Bird  r.  Hamilton, 
post,  3G1;  Paddock  v.  Pardee,  1  Mich.,  421. 

But  there  is  no  presumption  of  law  that  parties  will  always  make  the  same 
terms  for  their  contracts.     Each  must  stand  by  itself  unless  they  are  actually 
connected,  or  referred  to  in  the  course  of  dealing.     Hinman  r.  Eakin,  26 
Mich.,  80. 
66 


FIRST  CIRCUIT,  OCTOBER,  1S42.  58 


Bronson  v.  Green. 


Arthur  Bronson,  of  tlie  first  part,  and  C.  K.  Green,  of  the  sec- 
ond part,  witnesseth,  that  the  said  parties  of  the  first  part  cov- 
enant and  agree,  that  the  lands  and  lots  ])nrchased  under  a 
certain  contract  between  the  said  parties  of  the  first  and  second 
part,  dated  November  5th,  1835,  shall  be  exposed  for  sale,  at 
public  vendue,  on  the  first  day  of  October  next,  at  JN'iles, 
in  Michigan,  or  at  such  other  place  as  said  Green  *inay  [*5S] 
elect,  in  Illinois  or  Michigan,  on  the  following  terms  of 
payment:  one-fourth  cash  on  the  day  of  sale,  the  residue  in 
three  equal  annual  payments,  with  interest  annually,  at  seven 
per  cent,  per  annum,  no  sale  to  be  made  of  quantities  less  than 
eighty  acres,  nor  shall  any  lands  be  sold  for  less  than  two  dol- 
lars and  fifty  cents  per  acre,  nor  shall  any  of  said  town  lots  be 
sold  (except  with  the  consent  of  the  parties)  below  first  cost, 
except  the  village  lots  in  Constantine,  which  last  mentioned 
lots  are  to  be  sold  in  the  discretion  of  said  Green,  and  the  said 
parties  of  the  first  part  agree  to  execute  contracts  of  sale,  on 
receiving  the  payment  of  one-fourth  in  cash  as  aforesaid,  ao-ree- 
ably  to  the  terms  aforesaid;  and  the  said  parties  of  the  first  part 
further  covenant  and  agree  to  account  to,  and  pay  over  to  said 
Green  all  sums  of  money,  and  transfer  to  him  all  securities, 
and  convey  to  him  all  lands  that  may  remain  in  their  posses- 
sion after  they  shall  have  received  the  sum  of  $12,310.60,  with 
interest  at  seven  per  cent,  per  annum  from  the  first  dav  of  Jan- 
uary last,  to  be  computed  annually,  together  with  all  costs  and 
expenses  and  taxes  that  maybe  incurred  in  the  premises."  In 
consideration  of  which,  Green  covenanted  that  he  would,  imme- 
diately after  the  said  first  day  of  October,  execute  and  deliver 
to  the  complainants  his  bond  and  mortgage  on  certain  property 
he  owned  in  the  village  of  ISTiles,  for  the  said  $12,310.00  and 
interest.  The  proceeds  of  the  lands  to  be  sold  were  to  be  ap- 
plied on  the  bond  and  mortgage,  when  received  by  the  com- 
plainants, and  the  bond  and  mortgage  were  to  be  paid  within 
five  years.  Green  did  not  sell  the  lands  on  October  1st,  1839, 
nor  had  he  executed  to  the  complainants  his  bond  and  mort- 


gage. 

The  defendants  demurred. 


67 


59  CASES  m  CHANCERY. 

Bronson  v.  Green. 

jS.  Barstow,  in  support  of  the  demurrer. 

J.  F.  Joy^  contra. 

p59]  *TiiE  Chancellor.  Green  insists  that  the  sale  of  the 
lands  on  October  1st,  1839,  was  a  condition  precedent  to 
the  giving  of  the  mortgage,  and  that,  by  the  last  contract,  it 
was  the  duty  of  the  complainants,  and  not  of  himself,  to  sell 
them.  This  is  the  only  question,  and  the  decision  of  the  Court 
must  depend  on  the  construction  to  be  given  to  the  complain- 
auts'  covenant  in  the  contract  of  June  21:th,  1839,  that  the  lands 
purchased  under  the  contract  of  1835,  should  be  exposed  for 
sale,  at  public  vendue,  on  the  first  of  October  then  next. 

Contracts  are  to  be  constraed  according  to  the  intention  of 
the  parties,  which  is  to  be  looked  for  in  the  contract  itself. 
And,  when  several  instruments,  relating  to  the  same  matter, 
are  made  between  the  same  parties  at  the  same  time,  they  form 
one  entire  contract,  and  are  to  be  construed  together.  Jackson 
V.  McKenney,  3  Wend.  E.,  233;  10  Pick.  R.,  302.  So,  where 
one  writing  refers  to  another,  the  intention  of  the  parties  is  to 
be  gathered  from  the  two  instruments  taken  together.  Cow. 
&  H.  !N^otes,  p.  1420,  and  cases  there  cited.  On  the  same  prin- 
ciple, when  one  contract  grows  out  of  another  to  which  it  re- 
fers, and  both  are  in  writing,  the  first  contract  may  be  looked 
into  to  get  at  the  intention  of  the  parties  in  the  last,  when  that 
intention  is  not  clearly  expressed  on  the  face  of  the  contract  it- 
self. 

By  the  contract  of  June  24th,  1839,  the  complainants  cove- 
nanted that  the  lands  purchased  under  the  contract  of  ITovem- 
ber  5th,  1835,  should  be  exposed  for  sale,  at  public  vendue,  on 
the  first  day  of  October  then  next.     The  covenant  does  not  say 
in  express  terms  that  they  shall  be  exposed  for  sale  by  the  com- 
plainants.    This  is  an  inference  merely,  drawn  from  the  fact 
that  the  complainants  are  the  covenantors,  and  it  would  be  con- 
clusive, were  it  not  inconsistent  with  other  parts  of  the  same 
contract,  and  with  the  previous  contract  of  ISTovember, 
[*60]    1835.     That  the  *coniplainants  were  to  sell  the  lands,  in- 
stead of  Green,  is  inconsistent  with  other  parts  of  the  con- 
68 


FIRST  CIRCUIT,  OCTOBER,  18i2.  61 

Bronson  v.  Green. 

tract.  The  sale  was  to  be  at  Niles,  in  Michigan,  or  at  sucli  other 
place  as  Green  might  elect  in  Illinois  or  Michigan.  If  Green 
was  to  sell  them,  it  was  proper  that  he  should  have  the  selection 
of  the  place  of  sale,  more  esi)eciallj  as  thej  had  been  purchased 
by  him,  and  he  was  better  acquainted  with  their  location,  and 
the  situation  of  the  country,  than  the  complainants.  If  the 
complainants  were  to  sell  them,  the  contract  is  deficient  in  not 
requiring  Green  to  select  the  place  of  sale,  and  notify  the  com- 
plainants of  it,  a  suitable  length  of  time  before  the  first  of 
October,  when  the  sale  was  to  take  place.  Again,  the  contract, 
after  stating  the  minimum  price  at  which  sales  may  be  made, 
says  the  lands  in  Constantine  may  "  be  sold  in  the  discretion 
of  said  Green."  The  only  inference  to  be  drawn  from  this  is, 
that  Green  was  to  sell  the  lands.  He  might  sell  the  Constan- 
tine lots  at  such  prices  as  he  thought  proper,  although  he  was 
restricted  in  the  price  of  the  other  lands.  The  contract  further 
provides  that  the  complainants  shall  "  execute  contracts  of  sale, 
on  receiving  the  payment  of  one-fourth  in  cash,"  &c.  If  com- 
plainants were  to  sell  the  lands,  this  was  altogether  unneces- 
sary. It  could  not  in  any  way  afiect  their  contracts  with  the 
purchasers  at  the  sale.  But,  if  the  lands  were  to  be  sold  by 
Green,  as  the  title  was  in  the  complainants,  it  was  a  recoo-ni- 
tion  of  his  agency  and  authority  to  sell,  and  an  undertak- 
ing on  the  part  of  complainants  to  execute  the  contracts 
he  might  make.  But  all  ambiguity  as  to  the  intention  of 
the  parties  is  removed,  when  we  take  the  two  contracts  together. 
By  the  first  contract.  Green  was  to  purchase  the  lands,  to 
take  the  title  in  the  name  of  complainants,  to  take  the 
agency  of  them  after  they  were  purchased,  and  to  sell  them 
to  the  best  advantage  for  complainants.  But  when 
*and  how  was  he  to  sell  them?  That  was  left  to  be  sub-  p61] 
sequently  arranged  between  the  parties.  The  contract 
provides  that  all  questions  which  may  arise  relative  to  the  man- 
agement or  disposition  of  the  lands,  or  the  manner  of  conduct- 
ing the  sales,  whether  for  cash  or  credit,  shall  be  determined 
by  a  majority  in  interest.  Green  was  bound  to  sell  them,  when 
they  were  to  be  sold,  but  he  could  not  sell  them  without  the 

69 


62  CASES  m  CHANCERY. 

Freeman  v.  The  Michigan  State  Bank. 

cousent,  express  or  iinj^lied,  of  a  majority  in  interest.  This 
was  given  by  the  contract  of  June  24tli,  which  fixes  the  time, 
manner  and  conditions  of  sale,  and  leaves  the  place  of  sale,  un- 
der certain  limitations,  discretionary  with  Green.  It  is  in  this 
light  I  consider  the  covenant  of  the  complainants,  and  it  seems 
to  me  there  can  be  no  doubt  on  the  question,  when  the  two  con- 
tracts are  taken  and  construed  together.  I  cannot  think  it  was 
the  intention  of  the  parties  to  release  Green  from  the  obligation 
he  was  under  to  sell  the  lands. 

It  was  said  on  the  argument,  that  Green  should  have  had  a 
power  of  attorney  from  the  complainants,  to  sell.  That  was 
not  necessary.  The  two  contracts  gave  him  ample  power  for 
that  purpose. 

Demurrer  overruled. 


['•'62]  *JoH]sr  Fkeeman  v.  The  Pkesident,  Dikectoes 
&  Company  of  the  Michigan  State  Bank. 

A  judgment  creditor  who  comes  into  this  Court  for  reUef,  must  show  that  he 
has  in  good  faith  exliausted  his  remedy  at  law.  This  is  usually  done  by 
showing  an  execution  issued  to  the  county  where  the  debtor  resides,  re- 
turned unsatisfied  in  whole  or  in  part.' 

Where  debtor  had  property  in  another  county,  which,  before  the  return  day 
of  the  first  execution,  he  offered  to  complainant  to  be  levied  upon,  held, 
the  complainant  should  have  caused  his  execution  directed  to  the  sheriff 
of  the  debtor's  county  to  be  returned,  and  sued  out  an  alias  execution  in- 
to the  county  where  the  property  was  situated. 

The  execution  to  the  debtor's  county  may,  for  this  purpose,  be  returned  at 
any  time;  and  it  is  not  necessary  to  wait  until  the  return  day.^ 

This  was  a  judgment  creditor's  bill. 

The  judgment  was  obtained  in  the  Circuit  Court  for  the 
county  of  Wayne,  and  an  execution  directed  to  the  sheriff 
of  that  county  had  been  taken  out  and  returned  unsatisfied. 

'  See  Smith  v.  Thompson,  ante,  1. 

70 


FIEST  CIRCUIT,  OCTOBEPw,  1842.  63 

Freeman  v.  The  Michigan  State  Bank. 

The  defendants  put  in  a  plea,  stating  that,  when  the  sheriff 
called  on  them  with  the  execution,  they  were,  and  still  are,  the 
owners  in  fee  simple  of  certain  unincumbered  real  estate,  de- 
scribed in  the  plea,  situated  in  the  counties  of  Saginaw  and 
Lapeer;  that  such  real  estate  is  sufheient  to  satisfy  the  judg- 
ment; that  they  caused  the  fact  that  they  were  owners  of  real 
estate  in  said  counties,  sufficient  to  satisfy  the  judgment,  and 
standins;  in  their  name  on  the  records  of  the  reo-isters  of  deeds 
for  said  counties,  to  be  communicated  to  the  plaintiff's  attor- 
neys, who  had  control  of  the  judgment  and  execution,  and 
whose  names  were  indorsed  on  the  writ;  that  they  caused  such 
facts  to  be  communicated  during  the  lifetime  of  the  exe- 
cution, *and  that  they  also  caused  an  offer  to  be  made  on  [*63] 
their  behalf,  at  the  same  time,  to  the  said  attorneys,  to 
turn  out  the  said  lands,  or  any  of  them,  to  be  levied  on  and 
sold  under  and  by  virtue  of  any  execution  or  writ  oi  fieri  fa- 
cias that  might  be  issued  on  the  judgment. 

II.  II.  EmvioiiSy  for  complainant. 

J.  F.  Joy.,  for  defendants. 

The  Chancellok.  The  law  is  too  well  settled  to  be  now  dis- 
turbed, that  a  judgment  creditor,  who  comes  into  this  Court  for 
relief,  must  show  he  has  in  good  faith  exhausted  his  remedy  at 
law.  This  is  usually  done  by  showing  an  execution,  directed 
to  the  county  where  the  debtor  resides,  returned  unsatisfied  in 
whole  or  in  part.  A  man  is  supj^osed  to  have  his  property 
about  him,  and  the  means  in  his  possession  to  pay  a  judgment 
obtained  against  him,  when  called  on  by  the  officer.  This  is 
the  reason  of  the  rule  requiring  the  execution  to  be  sent  to  the 
county  in  which  the  debtor  resides.  But  it  may  turn  out  that 
he  has  neither  the  money  to  pay  the  judgment,  nor  property, 
in  the  county  in  which  he  resides,  to  be  levied  upon,  and  yet 
has,  in  another  county,  abundant  property  to  pay  the  debt. 
Such  is  the  case  before  me,  with  this  additional  fact,  that  the 
defendants  informed  the  complainant  they  were  the  own- 
ers of  real  estate  sufficient  to  pay  the  judgment,  in  Saginaw 

71 


64  CASES  IN  CHANCERY 


Cote  V.  Dequindre. 


and  Lapeer  counties,  and  oiFered  to  turn  it  out  to  be  levied  on 
and  sold,  if  tlie  complainant  would  send  an  alias  execution  into 
either  of  those  counties.  This  is  the  substance  of  the  plea.  It 
cannot  be  said,  under  such  circumstances,  that  the  com- 
plainant  has,    in    good   faith,  exhausted   his   remedy  at  law. 

He  should  have  had  his  execution  returned,  and  taken 
[*64]    out  an    ^ alias,  directed  to  the  sheriff   of  the  proper 

count}'.  It  was  not  necessary  to  wait  until  the  return 
day  of  the  execution.  It  might,  for  that  purpose,  have  been 
returned  in  vacation.     Laws  1839,  p.  23,  §  6. 


Plea  allowed. 


Presque  Cote  v.  Heney  P.  Dequindre  et  al, 

A  debt  due  to  two  or  more  persons  jointly,  on  the  death  of  any  of  them. 
passes  to  the  survivor  or  survivors,  and  not  to  the  personal  representative!'- 
of  the  deceased.^ 

The  bill  in  this  case  was  filed  to  foreclose  a  mortgage  given 
by  Louis  Dequindre  to  Joseph  Cote,  Magdalene  Cote,  and  the 
complainant,  Presque  Cote,  to  secure  a  debt  of  between  ten 
and  eleven  hundred  dollars.  Joseph  Cote  and  Magdalene 
Cote,  two  of  the  mortgagees,  and  Louis  Dequindre,  the  mort- 
gagor, were  dead,  and  the  surviving  mortgagee,  Presque  Cote, 
tiled  his  bill  against  Henry  P.  Dequindre  and  Anne  Dequindre, 
heirs  at  law  of  Louis  Dequindre,  deceased,  and  four  other 
persons  claiming  an  intei-est  in  the  mortgaged  premises,  as 
subsequent  purchasers  or  incumbrancers.  The  last  mentioned 
defendants  demurred  for  want  of  equity,  but,  on  the  argument, 
assigned  as  a  cause  of  demurrer,  that  the  personal  representa- 
tives of  Joseph  Cote  and  Magdalene  Cote,  were  not  made  par- 
ties to  the  bill. 


'  See  Teller  v.  Wetherell,  9  Mich.,  464;  Martin  v.  McReynolds,  6  Mich.,  72. 
72 


FIRST  CIRCUIT,  OCTOBER,  1S42.  C5 

IngersoU  v.  Kirby. 
J.  /S.  Abbott,  in  support  of  demurrer. 
A.  W.  Buel,  contra. 

*TiiE  Chancellok.  On  tlie  deatli  of  Joseph  Cote  and  [^-65] 
Magdalene  Cote,  the  debt  at  law  survived  to  the  com- 
plainant, who  alone  could  sue  for  it,  or  discharge  the  mortgage 
on  receiving  payment.  A  debt  due  to  two  or  more  persons 
jointly,  on  the  death  of  one  or  more  of  them,  passes  to  the  sur- 
vivor or  survivors,  and  not  to  the  personal  representatives  of 
the  deceased.  The  administrator  or  executor  of  the  deceased 
party,  it  is  true,  in  nearly  all  cases,  has  in  equity  an  interest  in 
the  money  when  collected,  but  that  is  no  concern  of  the  debtors 
or  mortgagor,  who  is  bound  to  pay  the  survivor,  in  whom  the 
legal  interest  is  vested.  The  interest  in  the  mortgage  survives. 
R.  S.,  258,  §  8,  9. 

Demurrer  overruled. 


Justus  Ingersoll  v.  Zebulon  Kieby  et  al. 

A  complainant  cannot  demand  several  distinct  things  having  no  connection 
with  each  other,  of  several  defendants,  by  the  same  bill.^ 

When  the  matter  in  htigation  is  entire  in  itself,  it  is  not  necessary  that  each 
defendant  should  have  an  interest  in  the  suit  co-extensive  with  the  claim 
set  up  by  the  bill ;  he  may  have  an  interest  in  a  part  of  the  matter  in  liti- 
gation, instead  of  the  whole.* 

^  See,  generally,  on  the  subject  of  multifariousness,  Wales  v.  Newbould,  9 
Mich.,  45;  Wheeler  v.  Clinton  Canal  Bank,  Harr.  Ch.,  449;  Page  v.  Webster, 
8  Mich.,  263;  Kerr  i;.  Lansing,  17  id.  ,34;  Rchofield  v.  Lansing,  id.,  437; 
Reed  v.  Wessel,  7  id.,  139;  Hammond  r.  Mich.  State  Bank,  post,  214;  Bristol 
v.  Johnson,  34  Mich.,  123. 

^  Where  different  parcels  of  land  are  claimed  by  two  piu-ties  by  different 
titles,  they  cannot  be  joined  as  defendants  in  a  bill  filed  by  a  party  claiming 
both  parcels,  to  quiet  his  title.  Ilunton  r.  Piatt,  11  Mich.,  264.  See,  also, 
Burpee  r.  Smith,  post,  327;  Hart  v.  McKeen,  post,  417. 

73 


66  CASES  m  CHANCERY. 

IngersoU  v.  Kirby. 

This  was  a  hearing  on  demurrer. 

The  bill  states  that  complainant,  in  1830,  resided  at  Medina, 
in  the  State  of  ]^ew  York,  at  which  place  he  was  extensively 
engaged  in  business  as  a  tanner  and  currier,  and  dealer  in 

leather,  and  that,  at  the  solicitation  of  Zebulon  Kirbj, 
[^6&]  one  of  the  defendants,  he  furnished  him  with  *a  stock 

of  leather,  worth  from  one  thousand  to  fifteen  hundred 
dollars,  and  two  hundred  dollars  in  money,  to  go  to  Detroit 
and  open  a  store  in  the  leather  business  for  the  complainant; 
that  Zebulon  went  to  Detroit,  and  opened  the  store  in  the  sum- 
mer of  that  year,  and  continued  in  charge  of  it  as  the  agent  o± 
the  complainant  until  September,  1831,  during  which  time  the 
complainant  sent  to  him  leather,  and  other  articles  to  a  large 
amount;  that,  in  1831,  the  complainant  entered  into  copartner- 
sliip  with  Rufus  IngersoU  and  John  Bagley,  who  also  resided 
at  Medina,  under  the  name  and  firm  of  Justus  IngersoU  & 
Co. ;  that,  by  the  copartnership  agreement,  the  store  at  Detroit 
became  the  property  of  the  firm,  who  continued  the  business 
under  the  charge  of  Zebulon,  as  their  agent,  and  supplied  the 
store  from  time  to  time  with  leather  and  other  articles  from 
Medina,  until  N'ovember,  1833,  when  Riifus  IngersoU  and 
John  Bagley  sold  out  their  interest  in  the  Detroit  store  to  the 
complainant;  that  at  the  same  time,  or  soon  after,  a  new  copart- 
nership in  the  business  at  Detroit  was  formed  between  the 
complainani  and  Zebulon,  under  the  name  of  IngersoU  &  Kirby, 
that  the  complainant  was  to  be  credited  on  the  books  of  the 
new  firm,  as  capital  put  in  by  him,  with  the  whole  amount  of 
goods,  property,  debts  and  moneys,  belonging  to  the  concern  at 
Detroit,  and  Zebulon  with  about  $900,  which  was  due  to  him 
for  his  services  as  agent  of  the  firm  of  Justus  IngersoU  &  Co. ; 
that  Zebulon  was  to  devote  his  whole  time  and  attention  to  the 
business  of  the  firm,  that  for  all  stock  and  materials  the  com- 
plainant should  afterwards  furnish,  he  was  to  receive  credit  on 
t]  le  copartnership  books,  as  so  much  additional  stock  put  in  by 
him;  and  that  complainant  continued  to  reside  at  Medina,  and 
to  carry  on  his  business  there,  until  the  month  of  September, 
1838,   wdien   he    removed   with   his   family  to    Detroit,  and, 

74 


FIEST  CIRCUIT,  OCTOBER,  1842.  67 

Ingersoll  v.  Kirby. 

■•^'011  the  2Stli  day  of  Aiif,nist,  1839,  dissolved  the  copart-    [-07] 
nersliip  of  Ingersoll  (Sc  Kirby. 

The  bill  further  states,  that  when  the  complainant  purchased 
the  interest  of  his  copartners  in  the  Detroit  store,  Zebulon  was 
requested  to  make  out,  and  forward  to  Medina,  a  true  and 
faithful  inventory  of  the  proprety,  debts,  &c.,  belonging  to  that 
branch  of  the  copartnership  business  of  Justus  Ingersoll  &  Co.; 
that  he  agreed  to  do  so,  but  never  did;  that  the  complainant 
should  have  been  credited,  on  the  books  of  Ingersoll  &  Kirb}', 
with  at  least  820,84:1.52,  as  the  amount  of  stock,  debts,  &c,, 
belonging  to  the  Detroit  store,  when  the  copartnership  of  Inger- 
soll &  Kirby  was  formed,  and  that  Zebulon  had  neglected  to 
pass  the  same  to  the  credit  of  the  complainant.  The  bill  also 
charges  Zebulon  with  defrauding  the  complainant,  and  states 
that  he  did  not  keep  correct  accounts,  that  he  neglected  to  keep 
a  cash  book,  that  he  deposited  the  copartnership  moneys  in  the 
bank  in  his  own  name,  instead  of  the  partnership  name,  and 
that  he  had  used  the  money  of  the  firm  to  pay  his  own  indi- 
vidual debts,  and  the,  like.  Among  other  charges  of  this 
description,  the  bill  states  he  had  invested  certain  sums  of 
money  belonging  to  the  firm  in  real  estate,  which  he  claimed 
to  hold  as  his  individual  property;  and  that,  in  the  summer  of 
1838,  George  Kirby,  the  other  defendant,  who  is  a  brother  of 
Zebulon,  came  to  Detroit  from  the  State  of  JSTew  York  on  the 
invitation  of  Zebulon,  for  the  purpose  of  getting  up  an  estab- 
lishment in  the  same  line  of  business,  the  better  to  conceal  the 
frauds  Zebulon  was  practising  on  complainant;  that  George 
opened  a  store  in  Detroit,  and  commenced  dealing  as  a  leather 
merchant,  on  a  stock  of  goods  furnished  him  by  Zebulon,  in 
[)art  from  the  store  of  Ingersoll  &  Kirby,  and  in  part  purchased 
with  money  belonging  to  the  firm;  that  Zebulon,  at  difterent 
times,  caused  large  quantities  of  ^leather  to  be  removed 
from  the  store  of  the  firm  to  George's  store,  without  [*6S] 
consulting  complainant,  and  without  his  knowledge,  and 
that  such  leather  was  received  by  George,  and  sold  out  of  his 
store;  that  whatever  goods  have  been  received  and  sold  b}' 
George,  at  his  store  in  Detroit,  were  wholly  or  chiefly  purchased 

75 


69  CASES  m  CHANCERY. 


IngersoU  v.  Kirby. 


with  tlie  money  of  the  Urm  of  IngersoU  &  Kirby,  which  had 
been  received  by  Zebulon  in  the  course  of  their  business,  and 
and  never  accounted  for  to  complainant,  that  Zebulon  was  the 
real  owner  of  the  stock  in  George's  store,  or  of  the  greater  pait 
of  it,  and  that  George  had  full  notice  and  knowledge  of  all  the 
facts,  and  was  himself  a  party  to  the  fraudulent  intentions  and 
conduct  of  Zebulon,  so  far  as  related  to  the  use  of  the  property 
and  funds  of  IngersoU  &  Kirby  in  his  establishment;  and  that 
the  conducting  of  the  business  in  George's  name  was  intended 
as  a  mere  cover  to  defraud  complainant. 

The  bill  concluded  with  a  prayer  that  an  account  might  be 
taken  of  all  and  singular  the  dealings  and  transactions  afore 
said,  between  the  complainant  and  defendants  respectively,  from 
the  commencement  thereof,  and  also  an  account  of  all  moneys 
received  by  said  Zebulon,  both  while  such  agent  and  partner, 
&c. 

George  Kirby  demurred  for  want  of  equity,  and  also  for 
multifariousness,  and  put  in  an  answer  denying  "  all  combina- 
tion and  confederacy  charged  in  the  bill." 

A.  D.  J^raser,  for  complainant. 

D.  Goodtcin,  for  defendants. 

The  Chancellok.  The  answer  of  the  defendant  denies 
nothing  except  the  general  charge  of  combination  and  confed- 
eracy. The  other  parts  of  the  bill,  therefore,  must  be 
[*69]  taken  to  be  true.  The  answer  does  not  deny  that  *George 
Kirby  was  furnished,  by  his  brother  Zebulon,  with  a  stock 
of  goods  to  commence  business  on  in  Detroit,  and  that  the 
o-oods  were,  in  part,  taken  from  the  store  of  IngersoU  and 
Kirby,  and  in  part  purchased  with  the  money  of  the  firm;  or 
that  Zebulon,  at  diiferent  times,  caused  large  quantities  ot 
leather  to  be  taken  from  the  partnership  store  to  George's  store, 
to  be  sold,  or  that  these  things  were  done  without  the  knowl- 
edo-e  or  consent  of  complainant,  and  for  the  purpose  of  defraud- 
ino-  him.  Nor  does  it  deny  that  Zebulon  is  the  real  owner  of 
the  goods  in  George's  store.     These  allegations  of  the  bill,  and 

76 


riEST  CIECUIT,  OCTOBER,  1S42.  70 

Ingersoll  v.  Kirb}'. 

others,  such  as  George's  knowledge  of  tlie  nature  of  the  several 
transactions,  and  tliat  the  store  was  carried  on  in  his  name  as  a 
cover  to  the  frauds  of  his  brother,  in  which  George  participated, 
are  all  admitted  by  the  demurrer.  A  stronger  case  of  fraud 
could  not  well  be  made  out. 

The  other  ground  of  the  demurrer  is,  that  the  bill  is  multifa- 
rious. A  complainant  cannot  demand  several  distinct  things, 
having  no  connection  with  each  other,  of  several  defendants, 
by  the  same  bill.  But,  when  the  matter  in  litigation  is  entire 
in  itself,  and  does  not  consist  of  separate  things  having  no  con- 
nection with  one  another,  it  is  not  necessary  that  each  defend- 
ant should  have  an  interest  in  the  suit  co-extensive  with  the 
claim  set  up  by  the  bill;  he  may  have  an  interest  in  a  part  of 
the  matter  in  litigation,  instead  of  the  whole.  jFelloios  x.Fel- 
loivs,  4  Cow.  E.  682;  Brinkerhoof  v.  Brown,  6  J.  C.  E.  139; 
The  opinion  of  the  Yice-Chancellor  in  Salvidge  v.  Hyde,  5 
Madd.  E.  138. 

The  object  of  the  bill  is  a  discovery  of  the  copartnership 
efi'ects  of  Ingersoll  and  Kirby,  and  an  account  and  settlement 
of  the  copartnership  business  between  the  partners.  This  is 
one  entire  matter,  and  George  Kirby  is  made  a  party  on  the 
ground  of  fraud.  He  is  charged  with  aiding  and  assist- 
ing Zebulon  to  defraud  the  complainant,  *and,  for  that  ["TO] 
end,  with  having  received  and  sold  as  his  own,  and 
with  having  in  his  possession,  and  claiming  as  his  own,  but  in 
fact  for  Zebulon,  certain  property  of  the  firm  of  Ingersoll  &  Kir- 
l)y.  The  complainant  is  entitled  to  his  proportion  of  this  prop- 
erty, as  well  as  the  other  property  of  the  copartnership;  and, 
charged  as  George  is  with  fraudulently  obtaining  it  through 
Zebulon,and.  holding  it  for  him,  the  bill  is  not  multifarious 
because  it  prays  an  account  of  other  copartnership  property, 
with  which  George  has  had  nothing  to  do,  and  is  in  no  way 
connected. 

In  Fellows  v.  Felloius,  tlie  appellant,  and  two  others  im- 
pleaded with  him,  held  separate  parts  of  the  property  m  liti- 
gation, under  different  deeds  made  to  them  at  different  times 


77 


71  CASES  m  CHANCERY. 

Ingersoll  v.  Kirby. 

by  John  Fellows,  who  was  also  a  party,  to  defraud  the  respond- 
ents; and  the  bill  was  held  to  be  not  multifarious. 

The  decision  of  the  Yice  Chancellor  in  Salv'dge  v.  Hyde, 
was  reversed  by  the  Lord  Chancellor,  who  allowed  the  demur- 
rer for  multifariousness,  1  Jac.  E..  151.  (S.  C.  4  Eng.  Cond. 
Ch,  R.  68.)  But  that  case  differs  materially  from  the  one  now 
before  the  Court.  The  bill  did  not  charge  that  the  conveyance 
from  Culliford,  the  executor  and  trustee,  to  Laying,  who  de- 
murred, was  made  to  defraud  the  complainants.  The  report 
of  the  case  in  Maddock,  does  not  show  it  to  have  been  a  case 
of  actual  fraud,  on  the  part  of  Culliford  and  Laying;  and,  on 
the  argument  before  the  Lord  Chancellor,  as  appears  by  the 
report  in  1st  Jacob's  R.,  it  was  contended  only,  that  the  defend- 
ant Laying  had  entered  into  the  contract  under  circumstances 
amounting,  according  to  the  case  made  by  the  bill,  to  a  fraud. 
The  Lord  Chancellor,  in  his  opinion,  says,  "If  an  executor, 
having  a  power  to  sell,  agrees  to  sell  to  A.  B.,  can  a  bill  be 
filed  against  him,  and  also  for  a  general  administration 
[*71J  of  the  estate  ?  He  may  have  made  infinitely  *too  good 
a  bargain  with  the  trustee  to  sell,  one  that  the  Court 
would  not  allow  to  stand,  but  that  is  no  ground  for  making 
him  a  jDart}"  to  the  general  administration."  Such  language 
would  not  have  been  appropriate,  if  the  case  had  been  one  of 
actual  fraud. 

The  bill  prays  an  account  against  Zebulon  of  all  moneys,  etc., 
received  by  him  as  agent  of  the  firm  of  Justus  Ingersoll  &  Co. 
This,  at  first  view,  would  seem  to  be  a  separate  and  distinct 
matter  from  the  copartnership  business  of  Ingersoll  &  Kirby, 
and  to  have  no  connection  with  it.  Such  would,  undoubtedly, 
be  the  case,  were  it  not  for  the  agreement  between  complainant 
and  Zebulon,  when  they  entered  into  copartnership,  that  com- 
plainant should  be  credited  with  the  amount  of  stock,  debts, 
etc.,  belonging  to  the  Detroit  store,  as  capital  put  in  the  store 
by  him.  It  is  this  agreement  that  forms  the  connecting  link 
between  the  two.  A  settlement  of  the  copartnership  business 
cannot  be  made  between  the  partners,  without  ascertaining  the 
amount  of  capital  put  in  by  each;  and,  to  do  this,  an  account 

78 


FIEST  CIRCUIT,  OCTOBER,  1842.  72 

Hart  r.  Linsdny. 

must  be  taken  of  the  stock  belonging  to  tlie  Detroit  store,  at 
tlie  time  when  it  was  merged  in  the  firm  of  Ingersoll  &  Kirby. 
The  agency  and  copartnership  business  are  so  blended  together 
as  to  make  it  necessary  to  unite  them  in  the  bill.  Both  ac- 
counts must  be  taken,  under  the  peculiar  circumstances,  to 
settle  the  copartnership  business;  and,  such  being  the  case,  the 
bill  on  that  account  is  not  multifarious.  Lewis  v.  Edmund^  6 
Sim.  R.,  251;  (S.  C.  9  Eng.  Cond.  Ch.  R.,  255.) 
Demurrer  overruled. 


*  Silas  S.  Hart  v.  Elijah  Lindsay.     [*72] 

After  a  deci-ee  has  been  entered  on  a  bill  regularly  taken  as  confessed,  the 
question  of  opening  it,  to  let  in  a  defense  on  the  merits,  should  be  brought 
before  the  Court  by  petition,  accompanied  by  the  answer  proposed  to  be 
put  in. 

A  decree  regularly  entered  will  not  be  opened,  except  under  special  circum- 
stances, and  a  stronger  case  must  be  made  for  this,  than  to  vacate  an  or 
der^jro  confesso  before  decree.' 

Where  a  party  defendant  has  been  guilty  of  gross  negligence,  a  decree  will 
not  be  opened,  neither  will  a  re-taxation  of  costs  be  ordered,  or  sale  be  set 
aside. 

Rule  for  computing  costs  and  commissions  on  mortgage  sales  laid  dowi 

Motion  io  open  a  decree  on  bill  taken  as  confessed,  for  a  re- 
taxation  of  costs,  and  to  set  aside  the  Master's  sale  of  mort- 
gaged premises. 

Tlie  bill  was  tiled  June  21st,  1839,  and  the  subpoena  per- 
sonally served  on  the  defendant,  on  the  2Ttli  day  of  the  same 
month. 

The  defendant  stated  in  his  affidavit,  on  which  this  motion 
was  founded,  that,  soon  after  the  commencement  of  the  suit,  he 
Avent  to  the  city  of  Detroit,  and  employed,  as  he  supposed, 

^  See  Russell  c.  Waite,  ante,  31,  and  note. 

79 


73  CASES  m  CHANCERY. 

Hart  V.  Linsclay. 

Messrs.  Witlierell  &  Buel  to  attend  to  it  for  him,  to  whom  he 
paid  some  money,  and  promised  to  send  more;  that  he  after- 
Nvards  sent  them  more  money,  by  a  yonng  man  who,  as  he  was 
informed,  did  not  pay  it  to  them ;  that  he  heard  nothing  fnrther 
of  the  matter  until  August,  1841,  when  he  learned  the  com- 
plainant had  obtained  a  final  decree  in  the  cause;  that  he  then 
called  on  the  complainant,  and  agreed  with  him  for  a  stay  of  all 
further  proceedings  for  one  year,  on  his  paying  him  $30  for  the 

extension,  and  all  costs  that  had  accrued,  which  he  did. 
[*73]    That  the  consideration  of  the  mortgage  was  $200,  *in 

what  were  commonly  called  Wildcat  bank  bills,  mostly 
on  the  banks  of  Genesee  and  Lapeer;  that  he  had  but  little 
acquaintance  with,  or  knowledge  of  the  value  of  bank  bills  of 
any  kind,  at  the  time,  and  recciv^ed  them  solely  on  the  represen- 
tation of  Trnesdail,  the  mortgagee,  who  assured  him  they  were 
current,  and  good  money;  that,  on  the  next  day,  he  was 
informed,  by  persons  who  were  good  judges  of  money,  that  the 
bills  were  worth  little  or  nothing;  and  that  he  had  not  realized 
over  $50  from  them. 

The.  complainant,  in  his  affidavit,  stated  he  was  the  honafide 
holder  of  the  mortgage;  that  he  purchased  it  of  Truesdail,  and 
paid  for  it  the  full  amount  of  the  mortgage  and  interest;  that, 
previous  to  his  purchasing  it,  he  told  the  defendant  of  his  in- 
tention, when  the  defendant  informed  him  it  was  a  good,  valid, 
and  in  all  respects  a  fair  mortgage,  and  would  be  paid  by  him; 
that,  shortly  after  he  commenced  foreclosing  it,  defendant,  for 
the  first  time,  told  him  it  was  given  for  Wildcat  money,  which 
he  had  used,  with  the  exception  of  forty  or  forty-five  dollars; 
and  he  then  proposed  to  pay  $150,  in  a  few  days,  if  complain- 
ant would  wait  for  the  balance  from  six  to  nine  mouths;  that 
defendant  afterwards  had  frequent  interviews  with  complain- 
ant, and  from  time  to  time  gave  him  assurances  he  would  pay 
the  money;  that,  July  Tth,  1841,  the  defendant  paid  the  solic- 
itor's and  register's  fees,  and,  soon  thereafter,  again  told  com- 
plainant the  money  should  be  paid,  and  wished  to  know  what 
kind  of  money  complainant  would  take;  that,  about  the  last  of 
August,  or  first  of  September  following,  he  said  he  could  not 

80 


FIRST  CmCUIT,  OCTOBER,  1842. 


Hart  V.  Linsday. 


raise  the  money,  and  wished  conij)hiinant  to  wait  until  the  first 
of  June,  1842;  to  which  coin])hiinant  stated  lie  should  have  to 
go  or  send  to  Detroit  to  consult  counsel  as  to  whether  he  could 
do  so  without  prejudicing  his  rights,  and  if  he  could,  and 
defendant  would  pay  all  the  costs  in  the  case,  and  *$30  [*74] 
for  liis  trouble  and  expenses  in  going  to  Detroit  to  con- 
sult counsel,  lie  would  wait  until  that  time.  After  counsel 
had  been  consulted,  the  agreement  was  concluded,  and  the  $30 
and  Master's  costs  were  paid,  and  the  complainant  was  to  be 
at  liberty,  if  the  mortgage  debt  was  not  paid,  to  advertise  the 
])reinises  before  the  first  of  June,  to  be  sold  after  that  day. 
The  premises  were  sold  by  tlie  Master,  and  bid  in  by  tlie  com- 
plainant on  June  13th,  1842.  The  affidavit  of  True  P.  Tucker 
confirmed  the  statement  of  the  complainant  as  to  the  agreement 
to  postpone  the  payment  to  the  first  of  June,  the  payment  of 
the  $30,  and  the  right  to  advertise  the  premises  beibre  the  first 
of  June,  to  be  sold  after  that  time. 

II.  II  Urmnons,  in  support  of  the  motion. 

II.  T.  Backus,  contra. 

The  Chancellok.  After  a  decree  has  been  entered  on  a  bill 
regularly  taken  as  confessed,  the  question  of  opening  it  to  let 
iu  a  defense  on  the  merits,  should  be  brought  before  the  Court 
by  petition  In  Wooster  v.  Woodhull,  1  J.  C.  R.,  541 ;  Parker 
V.  Grant,  id.,  630;  Lansing  v.  McPherson,  3  J.  C.  R.,  424, 
and  Russell  v.  Walte,  ante,  31,  the  application  was  by  peti- 
tion. And  tlie  answer  the  defendant  proposes  to  put  in  should 
accompany  the  petition,  that  the  Court  may  see  its  materiality, 
and  that  it  is  a  full  and  suftlcient  answer.  A  decree  regularly 
entered  will  not  be  opened,  unless  under  special  circumstances. 
A  stronger  case  must  be  made  out  than  is  ordinarily  required 
to  vacate  an  order  for  taking  the  bill  as  confessed,  before  a  de- 
cree has  been  entered  upon  it.  This  may  be  done  on  motion 
or  petition.  But,  to  enable  the  Court  to  judge  of  the  merits  of 
the  application,  the  defendant  must  set  forth  the  nature 
Vol.  I.— G  81 


75  CASES  IX  CPIAKCEPwT. 

Hart  V.  Linsday. 

[*75]  ture  of  bis  defense,  in  tlie  affidavit  or  petition,  *or  pro- 
duce the  sworn  answer  he  proposes  to  file  in  the  case, 
Stockton  V.  Williams,  1  Har.  Ch,  H.,  241. 

Tlie  defendant  has  not  satisfactorily  accounted  for  his  delay 
in  not  making  his  application  sooner.  From  his  own  state- 
ment he  appears  to  have  been  guilty  of  gross  negligence.  The 
bill  was  filed  June  21st,  1839,  the  subpoena  served  the  same 
month,  and  the  decree  entered  September  12th,  1840.  Soon 
after  the  subpoena  was  served,  he  swears  he  employed,  as  he 
supposed,  Messrs.  "VYitherell  &  Buel  to  attend  to  the  suit  for 
him,  and  that  he  heard  nothing  more  of  it  until  August,  1841, 
— two  years  and  more, — when  he  learned  the  complainant  had 
obtained  a  decree  against  him.  During  this  time  he  makes  no 
inquiries  of  his  solicitors  as  to  the  progress  of  the  suit,  nor 
does  he  so  much  as  call  on  them,  or  give  himself  any  trouble 
whatever  about  it.  When  he  is  informed  a  decree  has  been 
taken  against  him  by  default,  what  does  he  do  ?  He  does  not  go 
to  his  solicitors  to  learn  the  cause,  but  applies  to  complainant 
to  give  him  until  the  following  June  to  pay  the  money,  and 
enters  into  an  agreement  for  that  purpose.  He  then  waits 
until  the  time  has  expired,  or  is  about  to  expire,  before  he 
makes  his  application  to  this  Court.  To  open  the  decree  undei- 
such  circumstances,  would  be  establishing  a  most  dangerous 
precedent.  The  agreement  for  further  time  is,  of  itself,  a  suf- 
ficient reason  why  this  part  of  the  defendant's  motion  should 
be  denied. 

The  costs  were  taxed  September  14th,  1840.     The  reasons 

stated  for  refusing  to  open  the  decree  apply  to  a  re-taxation  of 

the  costs.     They  are  a  part  of  the  decree  and  were  paid  in  part, 

under   the   agreement   of  the  parties.     In  Morris  v.  2f orris, 

1  J.  C.  R.  44,  the  Court  refused  to  order  a  re-taxation  of  costs 

after  two  terms  had  intervened,  on  the  ground  the  application 

came  too  late.     In  the  present  case,  nearly  two   years 

[*7G]    have  elapsed  since  the  costs  *were  taxed,  and  a  year  since 

they  were  paid  by  the  defendant.     In  Stockholm  v.  Itoh- 

hins,  24  Wend.  R.  100,  and  the  cases  there  cited,  the  question  of 

costs  was  between  attorney  and  client,  and  not  between  the  par- 

82 


.  riEST  CIRCUIT,  OCTOBEE,  1842.  77 

Weed  V.  Lyon. 

ties  to  the  suit.  The  Master  sliould  not  have  taxed  the  costs 
without  tlie  affidavit  required  by  tlie  ninety-third  rule  of  the 
Court,  but  it  is  too  late  now  to  object  to  the  irregularity. 

The  costs  of  selling  the  mortgaged  jireniises  were  taxed  by 
the  Master  at  842.34.  Of  this  amount,  820  were  for  printing 
the  notice  of  sale,  and  $22.34  Master's  fees.  The  sale  was  ad- 
journed five  several  times,  at  the  request  of  complainant,  and 
on  account  of  the  illness  of  the  Master.  The  expense  of  ad- 
journments should  not  be  borne  by  the  defendant,  unless  made 
at  his  request.  The  Master  charges  a  commission  of  $10.  I 
think  this  too  high.  Commissions  on  mortgage  sales  should 
be  one  per  cent  on  the  first  $500,  and  one-li&lf  of  one  per  cent 
on  the  balance,  the  whole  commissions  in  no  case  to  exceed  $10. 
Most  of  the  other  items  were  charged  in  the  bill  of  costs  taxed 
in  September,  1840,  and  had  been  paid  by  the  defendant,  who 
should  not  have  been  charged  with  them  a  second  time.  The 
defendant  may  have  an  order  for  the  re-taxation  of  these  costs, 
and,  on  ascertaining  the  amount  overpaid,  a  further  order 
requiring  complainant  to  repay  the  same  to  defendant,  with  the 
$35  balance  of  the  purchase  money  still  in  his  hands,  with  in- 
terest on  both  sums  from  the  day  of  sale,  and,  on  the  same 
being  paid  to  the  defendant,  or  to  the  Register  of  this  Court 
for  him,  the  Master's  report  of  sale  to  stand  confirmed. 


■•==Nathaniel  Weed  et  al  v.  James  Lyon  et  al.    [''77] 

The  right  of  appeal  is  a  statutory  right,  and,  where  a  party  has  failed  to  com- 
ply with  the  provisions  of  the  statute,  within  the  time  prescribed,  the  Court 
will  not  allow  a  re-entry  of  the  decree  to  enable  him  to  appeal.^ 

Motion  to  re-enter  a  decree,  to  enable  the  complainants  to 
appeal  to  the  Supreme  Court. 

'  See  Canfield  v.  Brig  City  of  Erie,  21  Mich.,  160;  Elliott  r.  Dudley,  8  id., 
62;  Moore  v.  ElUs,  18  id.,  77. 

83 


CASES  m  CHANCERY 


Weed  V.  Lyon. 


A  decree  was  entered  March  18th,  dismissing  the  complain- 
ants' bill  with  costs.  At  the  same  time,  notice  was  given  of  an 
appeal,  and,  April  25th,  application  was  made  to  the  Chancel- 
lor to  fix  the  amount  of  the  appeal  bond,  which  was  ordered  to 
be  in  the  sum  of  $100.  On  the  28th  day  of  the  same  month,  a 
bond  was  prepared  and  executed,  and  handed  by  the  complain- 
ants' solicitor  to  his  clerk,  with  instructions  to  have  it  approved 
and  filed ;  but,  owing  to  the  negligence  of  the  clerk,  it  was  not 
filed  with  the  Register  within  the  ninety  days  required  by  the 
statute. 

G.  C  Bates,  in  support  of  the  motion. 

II.  JV.  Walker,  contra. 

The  Chancelloe.  The  statute  regulating  appeals  from  thig 
Court,  says:  "  Such  appeal  shall  be  claimed  and  entered  within 
ninety  days  from  the  time  of  the  making  of  such  decree,  or 
final  order,  and  the  appellant  shall,  within  the  said  ninety  days, 
file  a  bond  to  the  appellee,  with  sufficient  sureties  to  be  approved 
by  the  Chancellor,"  &c.  R.  S.  379,  §  122.  The  next  section  is 
in  these  words :  "  If  the  appeal  shall  not  be  entered  and  such 
bond  be  filed  within  tlie  time  above  limited,  no  appeal  shall  be 

allowed." 
[*78]        *It  was  conceded  on  the  argument,  that  the  Court  has 

no  power  to  enlarge  the  time  given  by  the  statute  for  ap- 
pealing; but  it  was  insisted  it  has  power  to  permit  a  re-entry  of 
the  decree  dismissing  the  bill,  and,  in  that  way,  to  restore  to  the 
complainants  what  they  have  lost.  The  Court  may,  undoubt- 
edly, allow  a  decree  to  be  re-entered,  on  a  proper  case  being 
made  out  for  that  purpose;  but  it  cannot  for  the  purpose  of 
evading  or  getting  round  the  statute,  which  is  positive,  that 
the  appeal  shall  be  claimed  and  entered,  and  the  bond  filed, 
within  ninety  days  from  the  making  of  the  decree.  The  exer- 
cise of  such  a  power  would,  in  efiect,  be  claiming  for  the  Court 
a  power  to  do  indirectly  what  it  cannot  do  directly;  nay,  more, 
— a  power  to  resuscitate  a  lost  right,  or  to  reinstate  the  com- 
plainants in  what  they  have  lost  by  their  omission  to  comply 

84 


FOURTH  CIECUIT,  NOVEMBER,  1842. 


Rood  V.  Cliapin. 


with  the  statute,  and  not  through  any  fraud  or  improper  con- 
duct of  the  defendants. 

The  right  of  appeal  from  this  Court  to  the  Supreme  Court, 
is  a  statutory  right,  given  to  either  party  who  may  be  dissatis- 
fied with  tlie  decision,  on  certain  conditions,  which  can  no  more 
be  dispensed  with  by  a  court  of  equity,  than  by  a  court  of  law, 
where  the  right  has  been  lost  by  an  omission  to  comply  with 
tlie  statute.  It  is  the  complainants'  misfortune  that  the  appeal 
bond  was  not  filed,  within  the  ninety  days;  but  it  is  not  in  the 
power  of  the  Court,  under  the  circumstances  of  the  case,  to  give 
relief.     See  2  Paige  K  413;  7  id.  245. 

Motion  denied. 


*MiLEs  V.  KooD  V.  MiRZA  Chapin  &  Merrick     ['^79] 

S.  Chapin. 

Where  a  party  sold  land  for  wliich  other  land  was  given  in  part  payment,  and 
was  deceived  in  regard  to  the  latter,  the  bargain  was  set  aside  and  a  recon- 
veyance decreed. 

Where  a  party  purchases  land  in  possession  of  a  third  person,  with  a  knowl- 
edge of  that  fact,  he  takes  it  subject  to  all  equities  existing  between  his 
vendor  and  the  person  in  possession.* 

The  bill  in  this  case  was  filed  to  set  asiae  a  conveyance  of 
real  estate  for  fraud.  It  states,  that  the  complainant,  on  the 
28th  of  August,  1840,  conveyed  to  Mirza  Chapin,  one  of  the 
defendants,  forty  acres  of  land  situate  in  Genesee  county,  in 
consideration  of  a  yoke  of  oxen,  a  cow,  and  forty  acres  of  land 
situate  in  Wayne  county.  That  complainant  was  induced  to 
make  the  trade  by  the  false  and  fraudulent  representations  of 

'See  Godfrey  v.  Disbrow,  posf,  260;  Disbrow  v.  Jones,  Harr.  ch.4S;  Xorris 
V.  Showerman,  2  Doug.,  16;  McKee  r.  WUcox,  11  Mich.,  358;  Woodward  v. 
Clark,  15  id.,  104;  Dawson  v.  The  Danbury  Bank,  15  id.,  489;  Bloomer  v.  Hen- 
derson, 8  id.,  395;  Hubbard  v.  Smith,  2  id.,  207. 

85 


80  CASES  m  CHANCEKr. 

Rood  V.  Chapin. 

the  defendant,  who  stated  the  land  in  Wayne  count}^  to  be  as 
good  as  any  in  the  state,  with  openings  of  hazel  brush  upon  a 
part  of  it,  and  in  part  covered  with  walnut,  and  white  and 
black  oak  timber;  that  it  was  high  land,  free  from  marsh  or 
swamp,  and  lay  upon  the  corner  of  two  roads  that  crossed  each 
other,  and  was  within  a  mile  of  a  canal;  all  of  which  repre- 
sentations were  untrue.  That  complainant,  not  having  seen 
the  land  at  the  time  of  the  trade,  relied  on  the  aforesaid  repre- 
sentations of  defendant,  and  that  he  afterwards,  on  discovering 
the  fraud  and  imposition,  on  October  21st,  1840,  notified 
defendant  in  writing  that  he  did  not  consider  the  trade  binding, 
and  offered  to  rescind  it,  and  to  restore  the  oxen  and  cow,  and 
reconvey   the    lot    in   Wayne  county  to   the    defendant;  and 

demanded  a  reconveyance  from  him  of  the  land  in 
[''•80]    Genesee  county,  which  *the  defendant  refused  to  give. 

That  defendant,  on  the  next  day,  (October  22d,  1840,) 
conveyed  the  lot  in  Genesee  county  to  his  brother,  Merrick  S. 
Chapin,  the  other  defendant,  who,  on  the  next  day  thereafter, 
served  a  written  notice  on  complainant  to  quit  the  j)remises. 
The  bill  charged  the  conveyance  from  Mirza  to  Merrick  was 
made  without  consideration,  and  to  defraud  the  complainant. 
Mirza  Chapin,  by  his  answer,  admitted  the  trade,  but  denied 
that  he  held  out  any  improper  or  false  inducements  to  complain- 
ant, or  misrepresented  the  land,  as  charged  in  the  bill.  The 
answer  further  states  that  defendant,  before  the  exchange  took 
place,  informed  complainant  that  he  had  then  but  recently  pur- 
chased the  lot  of  one  George  Brickford,  who  informed  him  it 
lay  near  the  lands  of  Mr.  Kellogg,  of  Brownstown,  in  Wayne 
county;  that  it  lay  on  the  corners  by  Kellogg's,  and  was  good 
land,  and  had  little  or  no  marsh  on  it.  That,  if  it  was  the  land 
defendant  supposed  it  to  be  from  the  aforesaid  description,  he 
had  seen  it,  and  it  was  good  land;  but,  as  it  was  some  years 
since  he  had  been  near  where  it  was  described  to  be,  he  could 
not  tell  whether  the  roads  were  laid  out  or  not;  that  he  gave 
the  complainant  a  description  of  the  country,  and  of  the  tim- 
ber growing  there  at  the  time  of  defendant's  residence  in  that 
county,  and  stated  that,  if  the  land  was  where  it  was  described 

86 


FOUllTII  CIECUIT,  KOYEMBER,  1842.  81 

Rood  r.  Chapin. 

to  be,  the  timber  was  oak,  and  that  there  was  probably  some 
wahnit;  and  that  lie  did  not  make  any  statements  on  liis  own 
positive  knowledge  of  the  value  and  situation  of  the  land,  but 
solely  on  the  information  he  had  received  from  Brickford,  and 
that  he  did  not  make  such  statements,  or  any  of  them,  with  a 
view  to  mislead  the  complainant,  or  imjDose  on  him,  but  to  give 
him  all  the  information  on  the  subject  defendant  had  himself 
received;  and  he  advised  complainant  to  go  and  examine  the 
lot  for  himself,  and  offered  to  go  and  show  it  to 
*liim.  He  admitted  he  had  been  informed  the  lot  did  [■•SI] 
not  lie  on  the  roads  where  he  supposed  it  did  from  Brick- 
ford's  description;  and  that  complainant  had  given  him  notice 
he  did  not  consider  the  trade  binding,  and  had  offered  to  re- 
convey  and  return  the  property  as  stated  in  the  bill.  He  also 
admitted  that  on  the  next  day  after  he  received  the  notice,  he 
conveyed  the  lot  lying  in  Genesee  county  to  his  brother, 
Merrick  S.  Chapin,  but  denied  that  such  conveyance  was  made 
to  defraud  complainant,  or  without  a  good  and  valuable  consid- 
eration. 

Merrick  S.  Chapin,  by  his  answer,  denied  all  knowledge  of 
the  nature  of  the  transaction  between  his  brother  and  com])lain- 
ant,  and  all  information  on  the  sul)ject,  until  after  he  had  jjur- 
chased  and  paid  for  the  land.  Admits  the  purchase  on  October 
22d,  1840,  and  that,  on  the  next  dav,  he  gave  the  complainant 
notice  to  quit  the  premises;  but  denies  that  the  conveyance  to 
him  was  made  to  deiraud  the  complainant,  or  to  assist  his 
l)rother  in  defrauding  him,  or  that  it  was  made  without  a  good 
and  valuable  consideration. 

It  is  unnecessary  to  state  the  testimony,  as  the  material  parts 
of  it  are  to  be  found  in  the  opinion  of  the  Court. 

J.  P.  Richardson^  for  complainant 

Hunt  c5  Watson,  for  defendants. 

The  Chancki.lor.  There  can  be  no  doubt  that  ]\[irza 
Chapin  fraudulently  misrepresented  the  lot  in  Wayne  county, 

8T 


82  CASES  IN  CHANCEEY. 

Rood  v.  Chapin. 

at  the  time  of  the  trade,  and  his  answer  is  but  a  lame  attempt 
to  phister  over  and  conceal  the  fraud.  He  says  the  representa- 
tions made  by  him  were  stated,  at  the  time,  to  be  on  the  infor- 
mation of  Brickford,  of  whom  he  had  a  short  time  before  pur- 
chased the  land,  and  that  he  advised  complainant  to  go 
[*82]  and  see  the  land,  before  the  *trade  took  place,  and  pre- 
pared to  go  and  show  it  to  him.  If  any  such  advice 
was  given,  or  offer  made,  I  liave  no  doubt  it  was  done  with  a 
view  to  throw  complainant  otf  his  guard,  and  induce  him  to 
]3lace  greater  reliance  on  the  fraudulent  representations  of  the 
defendant.  The  testimony  shows  that  defendant's  representa- 
tions were  of  an  entirely  diflerent  character  from  what  he 
states  them  to  have  been. 

Ziba  Goff,  who  was  called  on  to  draw  the  writings,  says,  he 
understood  Rood  had  never  seen  the  land  in  Brownstown. 
Chapin  said  the  land  was  something  like  that  they  were  on. 
which  was  hazel  brush  land,  and  what  would  be  called  rather 
hard,  but  middling  good  wdieat  land.  Chapin  said  he  would 
pay  ten  dollars  an  acre  for  every  acre  of  marsh  on  it,  and  that 
it  was  as  good  land  as  that  they  stood  on,  which  was  the  land 
Rood  sold  to  Chapin,  the  princi23al  part  of  wdiich  was  good  til- 
lable land.  He  thinks  Chapin  said  it  was  on  four  comers,  and 
tliat  there  was  oak,  and  some  black  walnut  on  it.  He  called  it 
oak  openings. 

George  Goff  testifies  that  Chapin  said  it  was  a  good  lot  of 
land,  located  upon  a  turnpike  on  one  side,  and  on  the  other  side 
had  a  road,  running  the  length  of  it,  as  much  traveled  as  the 
Shiawassee  road  running  to  Byron.  He  said  it  was  timbered 
with  oak  and  black  walnut,  with  hazel  nut  plains — no  marsh 
upon  it.  He  said  it  was  near  to  the  I'oute  of  a  canal.  He  told 
Mr.  Rood  he  could  depend  upon  its  being  such  land  as  he  rep- 
resented. Witness  thinks  he  said  he  had  been  on  the  sides  of 
the  land.  Witness  understood  Mr.  Rood  had  not  been  on  the 
land  or  seen  it,  and  depended  on  Chapiu's  representations  of 
it.  Is  positive  Chapin  said  he  had  been  on  two  sides  of 
it.     He   said   the   man  who  had   owned  it  had   been  offered 


88 


FOURTH  CIRCUIT,  NOVEMBER,  1842.  83 

Rood  V.  Chaijin. 

ten  ^dollars  an  acre  for  it,  and  it  -svould  brinf^  that  any    ['^83] 
time  land  would  sell. 

William  II.  Knapp  states  that  Hood  inquired  of  Cliai)in 
about  the  timber  and  the  quality  of  the  land,  and  what  was  its 
situation,  and  whether  there  was  a  road  near  it,  and  Chapin 
said  it  was  one  of  four  corners  of  the  public  highway,  &c. 
That  the  land  was  a  black  sandy  soil,  a  part  well  timbered,  and 
a  part  openings;  the  timber  was  black  walnut,  hickory,  and 
white  oak.  In  reply  to  Mr.  Rood's  question,  "Is  there  any 
marsh  upon  it?"  Chapin  said  he  had  crossed  two  sides,  and 
there  was  not  any  marsh  upon  it;  that  it  was  as  good  land  as 
that  on  w^iich  we  stood  (which,  in  witness's  opinion,  was  good 
land),  or  as  good  as  any  land  in  Michigan. 

From  the  deposition  of  Henry  Park,  United  States  deputy 
surveyor,  who  surveyed  the  lot,  and  made  a  diagram  of  it, 
w^hich  accompanies  his  deposition,  it  appears  to  be  almost  en- 
tirely marsh,  and  low  wet  land,  covered  with  willow  and  alder, 
with  some  few  sand  ridges.  Mr.  Park  says  it  is  not  worth  over 
twenty-five  dollars,  and  that,  taking  it  as  a  whole,  it  is  not  sus- 
ceptible of  being  in  any  way  cultivated  as  a  farm,  and  that  no 
part  of  it  affords  an  eligible  site  for  building.  That  the  dry 
land  is  of  the  poorest  quality,  and  that  there  is  no  timber  ex- 
cept a  few  scattering  oaks.  The  nearest  road  lies  from  thirtv 
to  thirty-six  rods  from  it,  and  has  the  ajipcarance  of  being  a 
road  chiefly  for  the  accommodation  of  the  immediate  settlers. 

It  does  not  appear  from  the  testimony  the  representations  of 
Mirza  Chapin  were  based  on  information  received  from  Pi-ick- 
ford,  or  any  one  else,  but  the  contrary;  for  he  said  he  had  been 
on  two  sides  of  the  lot,  that  he  would  give  ten  dollars  an  acre 
for  the  marsh  on  it,  that  it  was  as  good  land  as  any  in 
Michigan,  and  that  the  former  owner  ^(meaning  Brick-  [*S4] 
ford)  had  been  offered  ten  dollars  an  acre  for  it.  The 
trade  must,  therefore,  be  set  aside  as  fraudulent,  and  a  recon- 
veyance of  the  land  bo  decreed,  unless  ]\Ierrick  S.  Chapin,  the 
other  defendant,  is  entitled  to  the  protection  of  the  Court  as  a 
l)ona  fide  purchaser  without  notice  of  the  fraud. 

Tlie  complainant  was  in  possession  of  the  premises,  claiming 

89 


85  CASES  IN  CIIA^^CERY. 

Mercer  v.  Williams. 

them  as  his  own,  and  insisting  the  trade  between  him  and  Mirza 
was  not  binding,  in  consequence  of  the  fraud,  when  Merrick 
])urchased  of  his  brother,  with  full  knowledge  of  complainant's 
possession. 

On  the  21st  of  October,  complainant  notified  Mirza  he  did 
not  consider  the  trade  binding,  and,  on  the  next  day,  Mirza 
conveyed  the  land  to  Merrick,  who,  on  the  following  day,  gave 
notice  to  complainant  to  quit  the  premises.  The  quick  succes- 
sion in  which  these  acts  followed  each  other,  is,  of  itself,  calcu- 
lated to  excite  suspicion  in  the  mind.  But  the  fact  that  Mer- 
rick knew,  when  he  purchased  of  his  brother,  that  the  complain- 
ant was  in  possession  of  the  premises,  makes  him  a  purchaser 
with  notice  of  complainant's  title. 

A  vendee  who  purchases  real  estate  not  at  the  time  in  the 
actual  possession  of  the  vendor,  but  of  a  third  jDcrson,  with  a 
knowledge  of  that  fact,  takes  it  subject  to  all  equities  existing 
between  the  vendor  and  the  person  in  possession,  whether  such 
person  be  in  possession  as  tenant  of  the  vendor,  or  otherwise. 
This  is  the  principle  to  be  deduced  from  the  cases  of  Taylor  v. 
Stibhert,  2  Yes.  E.,437;  Daniels  v.  Davison,  16  Yes.  E.,  219, 
and  Griinstone  v.  Carter,  3  Paige  R,,  421. 

Decree  for  complainant. 


[*85]  *Benjamin  Meecee  v.  Gukdon  Williams  et  al. 

The  Legislative  Council  of  the  Territoiy  of  Michigan  had  power  to  pass  acts 
of  incorporation,  which  were  valid  until  disapproved  by  Congress.' 

Where  a  railroad  company  had,  in  good  faith,  obtained  an  assessment  of 
damages  by  a  jury,  on  land  which  was  necessary  for  their  road,  long 
before  they  wanted  the  use  of  it,  and  afterwards,  when  any  delay  would 
have  been  injurious  to  them,  and  while  the  confirmation  of  the  inquisition 
was  still  pending  in  the  Supreme  Court,  to  which  it  had  been  resei-ved, 
had  tendered  the  damages  assessed,  and  proceeded  to  use  the  land,  the 

iSee  Swan  v.  Williams,  2  Mich.,  427. 
90 


FOURTH  CIECUIT,  NOVEMBER,  1842.  80 


Mercer  v.  Williams. 


Court,  under  the  circumstances,  refused  to  enjoin  them  from  constructing 
the  road  upon  it,  althoug'h  the  inquisition  was  not  valid  until  confirmed; 
inasmuch  as  they  could  only  be  delayed,  and  could  not  be  prevented  from 
finally  obtaining-  the  land.' 

Tins  was  an  application  for  an  injunction  to  restrain  the 
defendants  from  constructino-  the  Detroit  and  Pontiac  raih'oad 
across  tlie  land  of  the  complainant. 

The  company  was  incorporated  by  the  Legislative  Council 
of  the  Territory  of  Michigan,  ]\[arch  7th,  1834;  and  the  road, 
as  located,  passed  over  two  out-lots  in  the  village  of  Pontiac, 
belonging  to  complainant.  In  1839,  the  compan}^,  not  being 
able  to  agree  with  the  comi)]ainant  for  the  right  of  way,  had 
his  damages  assessed  by  a  jury,  under  the  twelfth  section  of 
their  charter,  and  the  inquisition  returned  to  the  clerk  of  the 
Circuit  Court  for  the  county  of  Oakland,  for  confirmation.  The 
complainant  opposed  the  confirmation  of  the  intpiisition  by  the 
Circuit  Court,  which  reserved  the  cpiestion  for  the  opinion  of 
the  Supreme  Court,  where  the  question  was  still  pending.  On 
November  16th,  1842,  the  defendants  entered  on  the  aforesaid 
lots  of  the  complainant,  with  ploughs,  and  other  implements 
for  the  construction  of  the  road,  and  commenced  digging  and 
removing  the  earth,  the  company  having  previous- 
ly'" tendered  the  complainant  thirty  dollars  in  silver,  that  [*86] 
being  the  amount  at  which  the  jury  has  assessed  his 
damages. 

G.  W.  Wiener,  for  complainant. 

0.  D.  Richardson,  for  defendants. 

The  Chancellor.  The  injunction  is  asked  on  two  grounds: 
First,  that  the  Legislative  Council  of  the  Territory  had  not 
1)0 wer  to  create  a  corporation;  and,  Secondly ,  that  the  compa- 
ny have  no  right,  under  their  charter,  to  enter  on  the  land,  for 
the  purpose  of  constructing  their  road,  until  they  have  procured 
•a  confirmation  of  the  inquisition. 

'  See  Bagg  v.  City  of  Detroit,  5  Mich.,  348. 

91 


87  CASES  m  CHANCERY. 

Mercer  v.  Williams. 

Bj  tlie  ordinance  of  1787,  for  tlie  government  of  the  territory 
of  tlie  United  States  northwest  of  the  river  Ohio,  the  legisla- 
tive power  of  the  territory  was  vested  in  the  Governor  and 
Judges,  nntil  there  should  be  live  thousand  free  male  inhabit- 
ants of  full  age  in  the  district,  when  there  was  to  be  a  general 
assembly  or  legislature,  to  consist  of  the  governor,  legislative 
council,  and  a  house  of  representatives.  The  governor  and 
judges,  or  a  majority  of  them,  were  authorized  to  adopt  and 
publish  such  laws  of  the  original  States,  criminal  and  civil,  as 
might  be  necessary,  and  best  suited  to  the  circumstances  of  the 
district,  and  report  them  to  Congress  from  time  to  time;  which 
laws  were  to  be  in  force  until  the  organization  of  the  general 
assembly,  unless  disapproved  of  by  Congress.  Under  this  part 
of  the  ordinance  it  has  been  held  by  the  Supreme  Court  of  the 
State  of  'New  York,  that  the  governor  and  judges  had  power  to 
incorporate  a  bank.  Bank  of  Michigan  v.  Williams,  5  Wend. 
R.,  478.  And  this  decision  of  the  Supreme  Court  was  after- 
wards affirmed  by  the  Court  of  Errors  of  that  State.     7  Wend. 

E.,  539. 
[*87]  "^The  power  of  the  general  assembly,  or  legislature  of 
the  territory,  was  intended  to  be  more  extensive  than 
that  of  the  governor  and  judges,  who  were  limited  to  the  adop- 
tion of  laws  from  the  original  States,  w^hile  the  ordinance  declares 
"  the  governor,  legislative  council,  and  house  of  representatives 
shall  have  authority  to  make  laws,  in  all  cases,  for  the  good 
government  of  the  district,  not  repugnant  to  the  principles  and 
articles  in  this  ordinance  established  and  declared."  Now, 
there  is  nothing  in  the  ordinance  denying  to  the  general  assem- 
bly the  right  to  charter  a  bank,  railroad,  or  other  corporation; 
nor  is  there  anything  in  the  exercise  of  such  right  repugnant 
to  the  principles  or  articles  contained  in  it.  It  would,  moreover, 
it  seems  to  me,  be  a  strange  construction  of  the  ordinance,  to 
concede  to  the  governor  and  judges,  the  first  and  lower  grade 
of  territorial  government,  a  power  denied  to  the  last  and  higher 
grade. 

The  ordinance  has  been  repeatedly  altered  by  Congress.  The 
general  assembly  mentioned  in  it,  was  never  organized  in  Mich- 

92 


FOURTH  CIRCUIT,  NOVEMBER,  1842.  88 

Mercer  v.  Williams. 

ig.in.  By  "an  act  to  amend  the  ordinance  and  acts  of  Congress 
fur  the  government  of  the  Territory  of  Michigan,  and  for  otlier 
purposes,"  approved  Marcli  3,  1803,  the  same  powers  which 
were  granted  to  the  governor,  legislative  council,  and  liouse  of 
representatives,  by  the  ordinance,  were  conferred  on  the  gov- 
ernor and  legislative  council  mentioned  in  that  act,  which  also 
provided  that  no  law  passed  by  the  governor  and  legislative 
council  should  be  valid,  after  it  had  been  disapproved  by  Con- 
gress. This  was  the  only  limitation  on  the  governor  and  legis- 
lative council,  in  addition  to  that  contained  in  the  ordinance, 
that  they  should  pass  no  law  repugnant  to  the  principles  and 
articles  in  the  ordinance  established  and  declared.  By  another 
act,  approved  on  the  5th  of  February,  1825,  Congress  in 
creased  the  number  of  the  legislative  ^council,  and  after-  ['-SS] 
wards,  on  the  29th  of  January,  1827,  authorized  the 
members  of  the  council  to  be  elected  by  the  people;  but  by 
neither  of  these  acts,  nor  any  other  relating  to  the  territory,  did 
they  impose  any  other  or  further  restrictions  on  the  powers  of 
the  legislative  council;  nor  has  Congress  ever  disapproved  of 
the  act  incorporating  the  Detroit  and  Pontiac  Railroad  Com- 
pany. 

Second.  Under  the  eleventh  and  twelfth  sections  of  the  act 
of  incorporation,  the  company  have  no  riglit  to  enter  on  com- 
plainant's land,  for  the  purpose  of  constructing  their  road,  until 
they  have  procured  a  confirmation  of  the  inquisition,  and  made 
a  tender  of  the  damages.  The  eleventh  section  vests  them  with 
all  the  privileges,  rights,  and  powers,  necessary  for  the  location, 
construction,  and  keeping  in  repair  said  road ;  but,  while  it  pre- 
scribes no  limitation  to  their  riglit  to  enter  on  lands  for  the  pur- 
pose of  locating  the  road,  it  says  they  may  enter  upon,  use  and 
excavate,  any  land  which  may  be  wanted  for  the  site  of  said 
railroad,  &c.,  so  soon  as  the  amount  of  damages  is  ascertained, 
and  tendered,  as  thereinafter  provided.  And  the  twelfth  section 
provides  that,  where  the  parties  cannot  agree,  the  damages  shall 
be  assessed  by  a  jury,  who  shall  reduce  their  inquisition  to  writ- 
ing, and  that  it  shall  then  be  confirmed  by  the  Circuit  Court 
of  the  county,  if  no  sufficient  cause  to  the  contrary  is  shown; 

93 


89  CASES  IX  CHANCERY. 

Mercer  r.  Williams. 

or,  if  set  aside,  the  Court  ma}^  direct  another  inquisition,  and 
that  such  valuation,  when  paid  or  tendered  to  tlie  owner,  shall 
entitle  the  company  to  the  land  required,  as  fully  as  if  it  had 
been  conveyed  by  the  owner;  and  concludes  with  a  proviso,  that 
the  company  shall  not  have  power  to  take  the  Land  of  any  pei-- 
son  for  the  purposes  of  the  corporation,  until  full  payment  shall 
have  been  made  or  tendered  to  such  person,  for  all  damages 
assessed  to  him,  togetlier  with  the  costs  of  such  inquisi- 
[*89]  tion  or  assessment.  This  ^language  is  too  clear  and 
explicit  to  be  misunderstood.  The  damages  must  not 
only  be  assessed,  but  the  inquisition  must  be  confirmed,  before 
the  company  can  obtain  a  right  to  the  land  by  a  tender. 

The  onl}^  remaining  question  is,  whether  an  injunction  should 
be  granted  under  the  peculiar  circumstances  of  the  case.  If 
the  Court  had  power  to  restrain  the  company  from  taking  the 
land  at  all,  under  their  charter,  I  would  allow  the  injunction. 
But  this  it  cannot  do.  The  effect  of  the  injunction  would  be 
only  to  arrest  the  construction  of  the  road,  until  the  company 
obtained  a  right  to  the  land,  in  the  manner  pointed  out  in  their 
charter.  Even  this  the  Court  would  do  in  an  ordinary  case ; 
but  there  are  circumstances  in  the  present  case,  which,  I  think, 
take  it  out  of  the  general  rule,  and  I  shall,  accordingly,  deny 
the  injunction,  on  the  ground  that  the  company  had,  in  good 
faith,  instituted  proceedings  under  their  charter  to  take  tlie 
land,  long  before  they  were  in  want  of  it  for  the  construction 
of  their  road;  that  the  jury  assessed  the  complainant's  dam- 
ages at  thirty  dollars  only,  and  that  that  amount  had  been  ten- 
dered to  him,  and  the  company  will  sustain  great  damage  from 
the  delay  of  their  w^ork. 

Injunction  denied. 


94 


FIKST  CIRCUIT,  DECEMBER,  1842.  90 

Atto.ney  General  f.  Oak" and  County  Bank. 


*The  Attorney  General  v.  The  Prrsident,    ['-'90] 
Directors  and  Company  of  the  Oakland 
County  Bank. 

The  general  rule  is,  that  an  injunction  will  be  dissolved  where  the  equity  of 
the  bill  is  met,  and  fully  and  clearly  denied  by  answer;  which  must,  how- 
ever, for  this  purpose,  be  positive,  and  full  and  satisfactory  to  the  Court.' 

The  granting  and  continuing  of  injunctions  rest  in  the  discretion  of  the 
Court,  and  there  are  exceptions  to  the  rule  above  stated. 

If,  by  a  dissolution  of  the  injunction,  the  complainant  is  likely  to  be  deprived 
of  all  benefits  he  might  otherwise  derive  by  succeeding  in  the  suit,  it  will 
not  be  dissolved  as  a  matter  of  course,  on  the  coming  in  of  the  answer 
denying  the  equity  of  the  bill. 

An  injunction  will  not  be  dissolved  on  an  answer  admitting  the  equity  of  the 
bill,  and  setting  up  new  matter  as  a  defense. 

Where  a  bill  is  filed  under  a  statute,  where  there  is  au  exception  in  the  enact- 
ing clause,  it  must  negative  the  exception;  but,  where  there  is  no  excep- 
tion to  the  enactmg  clause,  but  an  exemption  in  a  proviso  thereto,  or  in  a 
subsequent  section  of  the  act,  it  is  matter  of  defense,  and  must  be  shoAvn  by 
the  defendant.^ 

The  defense  in  such  case  should  state  facts,  and  not  conclusions  of  law. 

Where  the  answer  is  put  in  issue,  the  defendant  must  prove  what  he  insists 
on  by  way  of  avoidance. 

Corporations  have  such  powers  and  capacities  as  ai'e  given  to  them,  and  none 
other;  and  every  abuse  of  such  powers  is  a  violation  of  the  law  of  their 
being,  and  a  forfeiture  of  their  franchises.  The  establishment  of  an 
agency  or  office  at  a  place  not  authorized  by  the  chartei*,  was  held  to  be  a 
violation  of  it.* 

Under  the  act  of  June  21,  1837,  this  Court  has  jurisdiction  over  banking  cor- 
porations to  restrain  them  by  injunction  from  exercising  their  corporate 
powers,  to  appoint  a  receiver  to  take  charge  of  their  assets,  and  to  decree 

'  See  Eldred  r.  Camp,  Harr.  Ch.,  162,  denial  by  plea. 

2  See  Myers  r.  Carr,  12  Mich.,  &)\  Lynch  v.  The  People,  16  id.,  472;  Great 
Western  R.  R.  Co.  v..  Hanks,  36  111.,  281:  Chicago,  B.  &  Q.  R.  R.  Co.  r. 
Cai-ter,  20  id.,  390. 

»See  People  r.  Oakland  County  Bank,  1  Doug.,  282;  Oit  v.  Lacey,  2  id., 
230;  People  r.  River  Raisin  &  Lake  Erie  R.  R.  Co.,  12  Mich.,  389;  Under- 
wood i\  Waldron,  id.,  73. 

95 


91  CASES  m  CHAIs-CERY. 

Attorney  General  v.  Oakland  County  Bank. 


their  dissolution,  in  the  following  cases :  1st.  When  the  corporation  is  in- 
solvent. 2d.  When  it  refuses  to  pay  its  debts.  3d.  When  it  has  vio- 
lated any  provision  of  its  charter,  or  of  any  law  binding  on  it. 

Motion  to  dissolve  injunction. 

This  was  a  bill  filed  by  the  Attorney  General,  under  the 
act  of  June  21st,  1837,  entitled  "  An  act  to  provide  for 
[•^91]  -proceedings  in  chancery  against  corporations,  and  for 
other  purposes."  It  prayed  for  the  appointment  of  a 
receiver,  under  the  fifth  section  of  the  act,  and  that  the  bank 
might  be  dissolved,  and  be  forever  deprived  of  its  corporate 
rights,  powers,  privileges  and  franchises;  and  for  such  further 
or  other  order,  as  should  seem  meet,  and  should  be  agreeable 
to  equity.  Among  other  things,  the  bill  stated  that,  by  the 
twenty-third  section  of  the  act  incorporating  the  bank,  which 
act  was  approved  March  28th,  1836,  it  was  provided  that  the 
leo-islature  might,  by  a  vote  of  two-thirds  of  each  house,  amend, 
alter  or  repeal  the  same;  and  that,  by  an  act  of  the  legislature, 
approved  February  16th,  184:2,  the  said  act  of  incorporation  was 
repealed,  by  a  vote  of  more  than  two-thirds  of  both  houses  of 
the  legislature,  and  complainant  Avas  informed  and  believed 
that  the  bank  had  not  complied  with  the  saving  condition  con- 
tained in  the  second  section  of  the  repealing  act.  The  bill  further 
stated,.that  the  bank  had  established  an  agency  at  Detroit;  and 
charged  that  the  establishment  of  such  agency  was  a  violation 
of  its  charter. 

An  injunction  was  granted  against  the  bank,  which  put  in 
its  answer,  verified  by  the  oath  of  its  president  and  cashier,  and 
moved  a  dissolution  of  the  injunction.  The  answer  admitted 
the  act  of  incorporation,  and  the  act  of  February  16th,  1842. 
It  then  stated  that  the  bank  had  complied  with  the  condition 
contained  in  the  second  section  of  the  repealing  act.  It  also 
admitted  the  bank  had  an  agency  at  Detroit,  wliere  its  cashier 
resided,  and  where  a  large  part  of  its  funds  was  kept;  but 
stated  that  the  agency  was  confined  solely  to  the  redemp- 
tion of  the  issues  of  the  bank,  and  to  the  buying  and  selling 
of  exchange,  as  incident  to  and  connected  with  the  redemption 

96 


FIRST  CIRCUIT,  DECEMBER,  1842.  92 

Attorney  General  v.  Oakland  County  Bank. 

of  its  issues;  and  that   no  discounts  liad  Leen   made  at  the 
agency. 

*It  is  unnecessary  to  make  any  further  statement  of     ["^92] 
the  facts  contained  in  the  bill  and  answer,  as  they  ap- 
])ear,  so  far  as  they  have  any  heariiii^  upon  the  decision  of  the 
Court,  in  the  opinion  of  the  Chancellor. 

T.  Romeyn^  E.  Farnsworth,  and  E.  B.  Harrington,  in 
support  of  the  motion. 

Z.  Piatt,  Attorney-General,  contra. 

The  Chancellor.  It  appears  very  clearly  to  my  mind  that 
the  present  motion  ought  to  be  denied.  But,  as  the  counsel  for 
the  bank  pressed  their  motion  with  much  zeal,  and  seemed  to 
think  the  question  too  clear  to  admit  of  a  doubt,  I  shall  state 
my  reasons  for  refusing  to  dissolve  the  injunction,  more  fully 
than  I  otherwise  should. 

First.  When  an  injunction  will  be  dissolved  on  bill  and 
answer. 

The  general  rule  is,  to  dissolve  an  injunction  when  the  equity 
of  the  bill  is  met,  and  fully  and  clearly  denied  by  the  answer. 
The  answer,  however,  must  be  positive,  and  not  upon  informa- 
tion and  belief,  and  must  be  full  and  satisfactory  to  the  Court; 
otherwise,  the  injunction  will  not  be  dissolved,  but  will  be  re- 
tained until  the  final  hearing  of  the  cause.  Roberts  v.  Ander- 
son, 2  J.  C.R.,  202;  Ward  v.  Van  BoJckelen,  1  Paige  R.,  100. 
The  granting  and  continuing  of  injunctions  rest  in  the  discre- 
tion of  the  Court,  and  there  are  exceptions  to  the  general  rule 
above  stated.  Poor  v.  Carleton,  3  Sumn.  R.,  70.  If  there 
would  be  very  great  danger  of  the  complainant's  losing  all  the 
benefits  of  his  suit,  by  a  dissolution  of  the  injunction,  should 
he  finally  succeed,  the  Court  will  not  as  a  matter  of  course  dis- 
solve it,  on  the  coming  in  of  the  answer  denying  the  equity  of 
the  bill.  Nor  will  an  injunction  be  dissolved  on  the  answer  of 
the  defendant,  where  the  answer  admits  the  equity  of 
the  bill,  *and  sets  up  new  matter  as  a  defense.  Minturn  [*93] 
V.     Seymour,  4  J.  C.  R.,  497. 

A^OL.  I.— 7  .  97 


94  OASES  IN  CHANCERY. 

Attorney  General  v.  Oakland  County  Bank. 

Second.  Is  the  equity  of  that  part  of  the  bill  which  re- 
lates to  the  repeal  of  the  charter,  met  and  denied  by  tlie  an- 
swer? Tlie  defendants  admit  the  repeal  of  their  charter,  bnt 
say  thev  have  complied  with  the  second  section  of  the  repeal- 
ing act.  Tliis,  they  contend,  is  a  full  and  complete  denial  of 
the  equity  of  this  part  of  the  bill.  The  argument  is  this: 
That,  inasmuch  as-  the  bill  does  not  state  by  the  omission  of 
what  particular  acts,  the  defendants  have  not  complied  with  the 
second  section  of  the  repealing  act,  but  states  generally  that 
they  have  not  complied  with  it,  their  answer  need  not  go  any 
further  than  the  bill,  and  that,  therefore,  it  was  not  necessary 
for  them  to  state  how,  or  in  what  way  they  had  complied;  that 
it  was  sufficient  for  them  to  affirm  a  compliance  generally,  and. 
having  done  so,  the  injunction  ought  to  be  dissolved.  The 
error  or  fallacy  of  this  mode  of  reasoning  lies  in  mistaking  the 
equity  of  this  part  of  the  bill,  or  in  supposing  it  to  consist  in 
the  omission  of  the  bank  to  comply  with  the  second  section  of 
the  repealing  act,  instead  of  the  repeal  of  its  charter. 

By  the  first  section  of  the  act  of  1842,  the  charters  of  some 
dozen  banks  are  unconditionally  repealed,  and,  among  the 
number,  is  the  Oakland  County  Bank.  Then  follows  the 
second  section,  which  is  in  these  words:  "The  said  Banks  of 
Macomb,  Pontiac,  Oakland  County,  Calhoun,  and  Constantine, 
if  they  shall  hereafter  comply  with  the  requirements  of  the  act, 
entitled  '  an  act  to  repeal  the  suspension  act  passed  April  12, 
1841,  and  for  other  purposes,'  and  shall  continue  to  do  a  legiti- 
mate banking  business,  shall  be  exempt  from  the  provisions  of 
this  act."  Now,  at  law,  in  declaring  on  a  statute,  where  there 
is  an  exception  in  the  enacting  clause,  the  pleader  must 
[*94]  ^negative  the  exception;  but,  where  there  is  no  excep- 
tion in  the  enacting  clause,  but  an  exemption  in  a  pro- 
viso to  the  enacting  clause,  or  in  a  subsequent  section  of  the 
act,  it  is  matter  of  defense,  and  must  be  shown  bj'  the  defend- 
ant. Teel  V.  Fonda,  4  J.  R,  304;  3  J.  K,  438;  "^1  J.  R.,  513. 
Such,  I  take  it,  is  the  rule  of  pleading  in  this  Court,  when  a  bill 
is  filed  under  a  statute. 

It  was  not  necessary,  then,  for  the  Attorney  General  to  state 

98 


FIRST  CIRCUIT,  DECEMBER,  1845.  95 

Attorney  General  v.  Oakland  County  Bank. 

in  the  bill,  as  lie  has  done,  that  the  bank  had  not  complied  with 
the  second  section  of  the  repealing  act.  It  was  snfficient  for 
him  to  state  the  repeal  of  the  charter,  and  leave  it  for  the  de- 
fendants to  show  a  compliance  with  the  second  section  of  the 
act,  if  they  could.  It  is  for  them  to  show  a  compliance,  and 
not  for  the  Attorney  General  to  show  a  negative,  or  non-com- 
pliance; and  they  should  have  stated  in  their  answer  how,  and 
in  what  way  they  had  complied  with  the  act.  Tliey  should 
have  stated  the  facts,  that  the  Court  might  judge  whether  they 
had,  or  had  not  complied;  and  not  a  conclusion  of  law,  as  they 
have  done  by  their  answer,  without  so  much  as  showing  the 
existence  of  the  facts  from  which  the  conclusion  is  drawn. 

Suppose  an  information  filed  against  the  defendants,  in  the 
Supreme  Court,  calling  upon  them  to  show  by  what  authority 
they  exercise  the  privileges  and  franchises  of  a  bank.  To  the 
information  the  defendants  would  plead  their  charter,  and  the 
Attorney  General  would  reply  the  act  of  last  winter  repealing 
it.  AVhat  would  be  the  next  step?  The  defendants  would  put 
in  a  rejoinder  admitting  the  replication,  or  the  repeal  of  their 
charter,  and  then  set  forth  the  second  section  of  the  act,  and 
proceed  to  allege  a  compliance  with  it,  by  a  statement  of  facts 
showing  how,  and  in  what  way  they  had  complied.  If  the 
Attorney  General  deemed  the  rejoinder  insufficient  in 
■^•law,  he  would  demur;  or,  if  he  supposed  it  sufficient  in  [*95] 
law,  but  not  true  in  fact,  he  would  put  in  a  sur-rejoinder 
denying  its  truth,  and  the  defendants  would  be  compelled  to 
establish  its  truth  by  evidence.  Must  the  Attorney  General 
prove  more  in  this  Court,  to  make  out  his  case,  than  at  law? 

In  foreclosure  bills  there  is  usually  an  allegation  that  a  cer- 
tain amount  is  due,  and  unpaid,  at  the  time  of  filing  the  bill. 
If  the  defendant,  by  his  answer,  after  admitting  the  execution 
of  the  mortgage,  and  the  debt  for  which  it  was  given,  should 
deny  there  was  anything  due  on  it  at  the  time  of  filing  the 
bill,  would  the  answer  be  evidence  of  that  tact  for  the  defend- 
ant; and  would  the  complainant  be  required  to  prove  the  money: 
had  not  been  ])aid?  If  such  be  the  rule  of  pleading  in  this 
Court,  the  pleader  should  be  cautious  what  he  states  in  his  bill, 

99 


96  CASES  m  CHANCERY. 

Attorney  General  v.  Oakland  County  Bank. 

or  lie  will  make  the  defendant  a  witness  for  himself,  to  establish 
a  defense  that  admitted  and  avoided  the  complainant's  cause 
of  action.  The  rule  is,  that,  where  the  answer  is  put  in  issue, 
the  defendant  must  prcjve  what  he  insists  on  by  way  of  avoid- 
ance.    Hart  V.  Ten  Eijck^  2  J.  C.  E,,,  89. 

Third.  The  agency  in  Detroit  is  a  clear  violation  of  the 
charter  of  the  bank.  By  the  charter,  the  bank  was  to  be  located 
at  such  place  in  the  county  of  Oakland  as  a  majority  of  the 
stockholders  should  direct,  and  it  was  located,  in  October,  1836, 
at  the  village  of  Pontiac.  The  cashier  resides  at  Detroit,  and 
has  charge  of  the  agency,  and  a  large  part  of  the  funds  of  the 
bank  is  kept  at  the  agency.  By  their  answer,  the  defendants  say 
the  agency  is  confined  solely  to  the  redemption  of  the  issues 
of  the  bank,  and  to  the  buying  and  selling  of  exchange  as  inci- 
dent to,  and  connected  with  the  redemption  of  their  issues; 
and  they  deny  that  any  discounts  have  been  made  at  the. 
agency.  A  brief  statement  of  facts,  taken  from  the  an- 
P96]  swer,  *will  show  the  extent  and  kind  of  business  done 
at  both  the  bank  and  agency. 

Wliile  the  bank  is  charged  with  $1,831  of  the  bills  in  circu- 
lation, the  agency  is  charged  with  $6,633.  Wliile  the  deposits 
at  the  bank  amount  to  $30  only,  at  the  agency  they  amount  to 
$6,337.19.  While  the  bank  has  specie  and  other  assets,  at 
Pontiac,  to  the  amount  of  $3,011.55,  it  had  at  its  agency  in  De- 
troit, in  specie,  drafts,  and  funds  deposited  in  Eastern  cities, 
$28,662.57.  These  facts,  of  themselves,  show  that  nearly  the 
whole  business  of  the  institution  was  done  at  its  agency  in 
Detroit,  and  not  at  Pontiac  where  the  bank  is  located.  It  is 
immaterial,  so  far  as  it  regards  the  violation  of  its  charter, 
whether  discounts  were  made  at  the  agency,  or  not. 

Deposits  were  received,  drafts  bought  and  sold,  and  the  bills 
of  the  bank  put  in  circulation,  at  the  agency;  all  which  the 
corporation,  by  its  cliarter,  had  no  right  to  do  in  Detroit,  or  at 
any  other  place  except  Pontiac,  where  the  bank  is  located.  In 
the  case  of  The  People  v.  The  Trustees  of  Geneva  College,  5 
Wend.  P.,  211,  which  was  an  incorporated  college  in  the  village 
of  Geneva,  in  the  western  part  of  the  State  of  I^ew  York,  it 
100 


FIEST  CIECUIT,  DECEMBER,  1842.  97 


Attorney  General  v.  Oakland  County  Bank. 


was  held  that  the  trustees  had  no  power  to  establish  a  medical 
school  in  the  city  of  New  York,  or  at  any  other  place  than 
Geneva,  where  the  college  was  located.  The  Chief  Justice,  in 
delivering  the  ojiinion  of  the  Court  in  that  case,  says,  "  In 
answering  this  question,  we  have  only  to  return  to  the  funda- 
mental principle  relating  to  artificial  beings,  that  they  have  sucli 
powers  and  capacities  as  are  given  to  them,  and  none  other. 
This  corporation,  by  the  very  terms  of  its  charter,  is  restricted 
as  to  place,  as  much  so  as  is  the  Bank  of  Geneva.  Suppose  the 
Bank  of  Geneva  were  to  establish  an  office  of  discount  and 
deposit  in  the  city  of  New  York,  could  they  justify  such 
a  proceeding?  It  may  *be  answered  the  charter  of  this  [*97] 
bank  contains  an  express  prohibition  against  carrying 
on  business  eleswhere;  but  without  such  prohibition,  there 
could  be  ho  question  on  the  subject,  and  it  M^ould  be  no  answer 
to  say  that  the  bills  are  signed  in  Geneva."  An  authority  to 
do  a  thing  at  one  place  is  no  authority  for  doing  it  at  another 
and  different  jjlace.  It  would  be  idle  for  the  legislature  to 
locate  a  bank,  if  the  institution  could  perambulate  the  State, 
and  establish  agencies  whenever  and  wherever  it  might  think 
it  for  its  interest. 

A  corporation  is  an  artificial  being,  created  by  law  witli  lim- 
ited powers,  and  for  specified  purposes;  and  there  is  a  tacit 
condition  annexed  to  its  charter,  that  it  shall  exercise  its  fran- 
chises in  the  manner  and  for  the  purposes  specified  therein,  and 
for  n,o  other  purpose,  and  in  no  other  manner;  and  every  abuse 
of  its  powers  is  a  violation  of  the  law  of  its  being,  and  a  forfeit- 
ure of  its  franchises.  C ommonicealth  v.  The  Union  and  Ma- 
rine Insurance  Company,  5  Mass.  R.  232;  9  Mass.  R.  427; 
Story  J.  9  Cranch  R.  51;  2  Kent  Com.  312;  Ang.  &  Ames  on 
Corp.  510,  and  cases  there  cited. 

Fourth.  It  was  insisted  that  the  act  of  1S37  was  not  imper- 
ative, but  left  it  discretionary  with  this  Court,  to  grant  the  in- 
junction or  not;  and  that,  as  the  Attorney  General  had  institu- 
ted proceedings  against  the  bank  in  the  Supreme  Court,  and  it 
did  not  appear  that  the  public  would  sustain  any  injury  if  the 
institution  should  be  permitted  to  proceed  with  its  business, 

101 


98  CASES  m  CHANCERY. 

Attorney  General  v.  Oakland  County  Bank. 


until  the  question  could  be  settled  in  that  Court,  the  injunction 
should  for  that  reason,  if  no  otlier,  be  dissolved. 

The  bill  is  not  filed  under  the  first  two  sections  of  the  act  of 
1S3T,  but  under  the  third,  and  subsequent  sections.    Under  the 

first  and  second  sections,  this  Court  is  authorized  to  re- 
[^98]    strain  by  injunction,  the  exercise  of  a  franchise,  *after 

proceedings  have  been  instituted  at  law  to  test  the  right 
to  the  franchise,  1st,  In  the  case  of  a  corporation  assuming  any 
franchise,  liberty  or  privilege,  or  transacting  any  business  not 
allowed  by  its  charter;  and,  2d,  Where  individuals  claim  any 
corporate  rights,  privileges,  or  franchises,  not  granted  to  them 
by  law.  In  these  two  cases,  the  jurisdiction  of  the  Court  ex- 
tends no  further  than  to  restrain  the  corporation  or  individu- 
als, as  the  case  may  be,  from  exercising  the  franchise  claimed 
by  them,  until  the  question  of  right  is  settled  at  law.  An  in- 
junction, therefore  would  not  be  granted  nnless  the  usurpation 
was  clear,  or  it  being  doubtful,  unless  there  was  danger  to  the 
public  while  the  question  was  being  tried  at  law.  But,  under 
the  other  sections  of  the  act,  the  powers  of  this  Court  are  more 
extensive  against  corporations  having  banking  jpowers.  It  has 
power  not  only  to  restrain  such  corporations,  by  injunction, 
from  exercising  their  corporate  powers,  but  to  appoint  a  receiv- 
er to  take  charge  of  their  property  and  eftects,  and  to  decree 
their  dissolution,  in  the  following  cases:  1st.  When  the  corpo- 
ration is  insolvent;  2d.  When  it  refuses  to  pay  its  debts;  and, 
3d,  Wlien  it  has  violated  any  of  the  provisions  of  its  charter,  or 
act  of  incorporation,  or  any  law  binding  upon  it.  Under  the 
statute  this  Court  has  greater  power  over  banking  corporations 
than  the  Supreme  Court.  It  may  not  only  enforce  a  forfeiture 
of  their  franchises,  by  dissolving  them,  for  a  violation  of  their 
charters,  but  it  may  appoint  a  receiver  to  take  charge  of  their 
efiects,  for  creditors,  and  compel  the  officers  and  stockliolders 
to  discover  the  same  under  oatli. 

Whether  the  Attorney  General  should  be  allowed  to  proceed 

in  this  Court  and  at  law  at  the  same  time,  or  shonld  be 
[*99]    required  to  make  his  election  in  which  court  he  will  *pro- 

ceed,  is  a  question  not  now  before  me,  and  one  that  it 

102 


FIliST  CIRCUIT,  DECEMBER,  1S42.  100 

Bank  of  Michigan  v.  Niles. 

will  be   time  enough  to  decide,  when  it  is  properly   brought 
before  the  Court. 
Motion  denied. 


The   President,   Directors   and   Company   of   the 
Bank  of  Michigan  v.  Johnson  Niles. 

Where  a  bank  had  power  under  its  charter  to  take  and  hold  lands  for  the  con- 
venient transaction  of  its  business,  and  to  secure  debts,  but  for  no  other 
purpose,  it  was  held,  it  had  no  right  to  purchase  lands  for  the  purpose  of 
selling  them  again ;  and  the  Court  refused  to  assist  it  in  enforcing  a  contract 
made  with  that  intent.^ 

A  purchase  after  the  contract  was  made,  in  part  performance  of  it,  will  not 
change  the  case. 

Tnic  bill  in  this  case  was  filed  to  obtain  the  specific  perform- 
ance of  a  contract  entered  into  by  the  parties  on  July  1st,  1839. 
The  complainants  bound  themselves  to  convey  to  defendant, 
within  sixty  days  thereafter,  certain  real  estate  described  in  the 
contract,  and  to  obtain  from  one  Jeremiah  II.  Pierson  a  ffood 
and  sufticient  deed  of  the  Rochester  mill  property,  and  convey 
to  him  three  undivided  fourth  parts  of  it;  and,  in  case  a  mort- 
gage sliould  be  given  by  them  on  the  mill  property,  for  the 
purchase  money,  they  covenanted  to  pay  the  incumbrance,  and 
cause  it  to  be  discharged  within  five  years.  The  defendant,  in 
return,  agreed  to  execute  a  mortgage  to  complainants  for  the 
purchase  money  to  be  paid  by  him,  amounting  to  $28,000,  on 
the  property  to  be  conveyed,  and  on  certain  other  prop- 
erty named  in  the  contract.  Within  the  sixty  days, 
*complainants  purchased  and  obtained  a  deed  of  the  [*100] 
mill  property  from  Pierson,  for  $5,000,  which  they  paid 
and  secured  to  be  paid  to  him.  They  then  made  out  and  exe- 
cuted a  deed  to  defendant  for  three-fourths  of  it,  with  the  other 

^  See  Attorney-General  v.  Oakland  County  Bank,  ante,  80. 

103 


101  CASES  IN  CIIANCEPvY. 

Bank  of  Michigan  r.  Niles. 

property  they  were  bound  by  the  contract  to  convey  to  him,  and 
were  ready  and  willing  to  perform  their  part  of  the  contract. 
The  defendant  demurred. 

G.  M.  Williams  and  A.  D.  Fraser,  in  support  of  the  de- 
murrer. 

J.  F.  Joy^  contra. 

The  Ciianoellok.  The  first  objection  made  by  defendant  is, 
that  the  bank  had  no  authority  under  its  charter  to  make  such 
a  contract  as  that  disclosed  by  the  bill;  and  that  this  Court  will 
not,  for  that  reason,  decree  a  performance  of  it. 

The  third  section  of  the  act  of  incorporation  concludes  with 
these  words:  "The  President,  Directors  and  Company  of  the 
Bank  of  Michigan  shall  be  in  law  capable  of  purchasing,  hold- 
ing and  conveying  any  estate,  real  or  personal,  for  the  use  of  the 
said  corporation."  By  the  ninth  section,  it  is  provided,  "  That 
the  lands,  tenements  and  hereditaments,  w^hich  it  shall  be  law- 
ful for  the  said  corporation  to  hold,  shall  be  only  such  as  shall 
be  required  for  its  accommodation  in  relation  to  the  convenient 
transacting  of  its  business,  or  such  as  shall  have  been  loiuifide 
mortgaged  to  it  by  way  of  security,  or  conveyed  to  it  in  satis- 
faction of  debts  previously  contracted  in  the  course  of  its  deal- 
ings, or  purchased  at  sales  upon  judgments,  which  shall  have 
been  obtained  for  such  debts." 

The  power  given  by  the  third  section  to  purchase,  hold,  and 

convey  real  estate,  is  limited  by  the  ninth  section  to 
[*101]  ■^specific  objects.     Taking  the  two  sections  together,  the 

intention  of  the  legislature  is  clear,  and  but  one  construc- 
tion can  be  given  to  them.  It  was  intended  that  the  corpora- 
tion should  have  power  to  purchase  real  estate  for  the 
convenient  transaction  of  its  business,  or  to  secure  a  debt;  but 
not  for  the  purpose  of  investing  its  capital,  or  of  speculating  in 
lands,  or  of  buying  them  merely  to  sell  again.  I  have  no 
doubt  this  is  the  true  construction  of  the  charter.  A  differ- 
ent construction  would  enable  the  corporation  to  buy  and  sell 
real  estate  at  pleasure,  and  render  entirely  nugatory  the  restric- 

104  ■  .        " 


SECOND  CIRCUIT,  JANUARY,  1843.  102 

Norris  V.  Hurd. 

tion  imposed  by  the  ninth  section.  The  corporation,  then, 
exceeded  its  powers,  and  contracted  to  do  what  it  had  no  right 
to  do  under  its  charter,  when  it  covenanted  to  purchase  the 
mill  property  of  Pierson,  and  convey  three-fourths  of  it  to 
defendant.  It  was  an  agreement  to  buy  real  estate  of  one  indi- 
vidual to  sell  to  another; — a  contract  to  violate  its  charter,  by 
embarking  in  a  business  with  which  it  had  no  right  to  meddle; 
— a  contract  which,  for  that  reason,  this  Court  cannot,  consist- 
ently with  equitable  principles,  assist  the  complainants  to  carry 
into  execution.  Equity  will  aid  no  one  in  doing  that  which  is 
unlawful.^ 

The  purchase  of  the  mill  property  of  Pierson  for  $5,000, 
after  the  contract  was  made,  makes  no  difference;  for  it  was 
done  under  the  contract,  and  in  part  performance  of  it.  The 
case  of  the  T/te  Banks  v.  Poitkiux,  3  Rand.  R.  136,  goes  no 
further  than  this,  that  the  corporation  having  purchased  the 
land,  might  make  a  deed  of  it;  not  that  it  might  make  a  con- 
tract with  A.  to  purchase  the  lands  of  B.,  and  sell  them  to  A., 
which  is  the  case  before  me. 

It  is  unnecessary  to  decide  the  other  questions  made  on  the 
argument. 

Demurrer  allowed. 

Note.    This  case  was  affirmed  on  appeal,  1   Doug.  401. 


*Mark  Norris  v.  Alanson  M.  Hurd  et  al.  [*102] 

Where  a  bill  was  filed  to  correct  a  mistake  in  the  description  in  a  deed,  of 
la»nd  which  had  been  surveyed  and  located,  hut  it  iras  not  sought  to  change 
the  location,  and  T.  held  a  lot  described  in  his  purchase  deed  as  bounded  by 
such  land,  held  that  he  need  not  be  made  a  party,  as  his  interests  wouk^ 
not  be  aflected  by  the  decree. 

'  See  Smith  v.  Barstow,  2  Doug.  165;  Oit  v.  Lacey,  id.  230;  Hurlbut  v. 
Britain,  id.  191. 

105 


103  CASES  IX  CIIAXCERY. 

Norris  v.  Hurd. 

A  witness  is  presumed  to  be  competent  until  the  contrary  is  shown. 

Where  a  defendant,  against  whom  a  decree  was  sought,  was  examined  as  a 
witness,  his  deposition  was  suppressed;  and  it  was  held,  that  the  examin- 
ation did  not  operate  as  a  release,  but  that  a  decree  might  still  be  had 
against  him,  if  warranted  by  other  evidence. 

Where  a  lot  which  had  been  surveyed,  located,  and  platted  on  a  diagram,  was 
sold  by  an  erroneous  description,  but  the  purchaser  and  all  succeeding 
holders  occupied  it  as  marked  out  by  the  survey,  a  decree  was  made  to  cor- 
rect the  mistake,  and  releases  were  ordered  to  be  made  between  the  par- 
ties whose  lands  were  affected  by  the  erroneous  description,  to  make  their 
lots  conform  to  the  location.^ 

Tins  was  a  bill  to  correct  a  mistake  in  a  deed  of  two  lots  of 
land  in  the  village  of  Ypsilanti.  It  appears  that,  on  the  29th 
of  December,  1832,  the  complainant  sold  to  JHurd  the  lots 
referred  to,  and  gave  him  a  bond  for  a  deed.  The  lots  were 
described  in  the  condition  of  the  bond  as  situate  in  the  town- 
ship of  Ypsilanti,  on  the  east  side  of  the  River  Huron,  directly 
south  of,  and  adjoining  a  highway  running  east  and  west 
across  the  river,  a  few  rods  north  of  the  mills  then  owned  by 
Mark  Xorris  and  Timothy  Mclntire.  The  first  lot  was  therein 
bounded  as  follows,  viz:  Beginning  north  thirty  degrees  west, 
one  chain  and  fifty  links  from  the  northeast  corner  post  of  the 
headgate  that  lets  the  water  from  the  east  side  of  the  dam,  which 
supplies  water  to  the  aforesaid  mills  of  Mark  Norris  and  Timo- 
thy Mclntire,  to  the  saw-mill   canal  leading  from  said   dam 

to  Norris  Wood's  saw  mill,  thence  north  sixty -nine  de- 
[*103]  grees*  forty-five  minutes  east  six  chains  and  twelve  links, 

thence  south  twenty- three  degrees  and  thirty  minutes  east 
four  chainSjthence  south  sixty-nine  degrees  and  forty -five  minutes 
west  four  chains  and  eighty-nine  links;  thence  north  parallel  to 
^he  center  of  said  canal  to  the  place  of  beginning,  containing  by 
estimation  two  acres  and  thir-ty-two  rods.     The  other  lot  begin- 

^  In  order  to  warrant  the  reformation  of  a  deed  on  the  ground  of  mistake, 
the  mistake  must  not  only  be  mutual,  but  must  be  admitted  or  distinctly 
proved.  Tripp  ?'.  Hasceig,  20,  Mich.  254;  Case  v.  Peters,  id.,  298;  Youell  v, 
Allen,  18  id.  107;  Ludington  v.  Ford,  33  id.  123. 

Mistake  as  to  the  legal  effect  of  an  instrument  is  no  ground  for  equitable 
relief.     Martin  v.  Hamlin,  18  Mich.  354. 

106 


SECOND  CIRCUIT,  JANUARY,  1843.  104 

Norris  v.  Hurd. 

iiing  south  sixty-nine  degrees  forty -five  minutes  loest,  seventy - 
nine  links  from  the  soutJt-west  corner  of  the  first  lot;  thence 
south  sixty-nine  degrees  forty-five  minutes  west,  three  chains 
and  forty-two  links;  tlience  north  thirteen  and  a  fourth  degrees 
east,  two  chains  and  thirteen  links;  thence  north  forty-four 
degrees  fifteen  minutes  east  one  chain  and  fifty  links;  thence 
south  forty  degrees  east,  two  chains  and  fifty-eight  links  to  the 
place  of  beginning,  containing  forty-nine  hundredths  of  an 
acre.  The  two  lots  were  separated  from  each  other  by  a  strip  of 
land  seventy-nine  links  wide  for  the  saw-mill  canal;  the  larger 
and  first  above  described  lot  lying  east  of  the  canal,  and  the 
other  west  of  it.  The  alleged  error  in  describing  the  lots  in 
the  condition  of  the  bond,  which  error  ran  through  all  the  sub- 
sequent conveyances,  consisted  in  erroneously  describing  the 
beo'innino;  or  northwest  course  of  the  lot  lyino^  east  of  the  canal. 
It  was  described  in  the  condition  of  the  bond  as  north  thirty 
degrees  west,  one  chain  and  fifty  links  from  the  northeast 
corner  post  of  the  headgate,  that  let  the  water  into  the  canal, 
whereas  the  bill  stated  it  should  have  been  described  as  north 
twenty-three  degrees  fifteen  minutes  west,  one  chain  and  four- 
teen links  from  the  northeast  corner  post  of  the  headgate. 
The  several  persons  through  whom  the  title  had  passed  were 
made  defendants,  all  of  whom  allowed  the  bill  to  be  taken  as 
confessed,  except  Timothy  Showerman  and  Hiram  Thompson, 
the  then  owners  of  the  lots.  They  filed  a  joint  and  several 
answer  denying  all  knowledge  of  the  mistake,  to 
*which  a  replication  was  filed  by  complainant.  The  [104*] 
bill  waived  an  answer  under  oath. 

King&^ey  c&  Backus,  for  complainant. 

C.  W.  Lane,  for  defendants,  Showerman  and  Thompson. 

The  Chancellor.  Before  I  proceed  to  the  merits  of  the  case, 
it  is  necessary  to  decide  two  or  three  preliminary  questions. 

1.  It  is  insisted  that  Jesse  W.  Taylor  should  be  made  a 
party.  It  appears  from  the  evidence  that  complainant,  in  July, 
1838,  and  soon  after  he  had  given  a  deed  to  Hurd,  sold  village 
lot  No.  308,  to  Tayloi-,  which  lot  is  described  in  Taylor's  deed 
to  be  bounded  on  the  north  by  land  deeded  to  Hurd.     Taylor's 

107 


105  CASES  m  CHANCERY. 

Norris  v.  Hurd. 

lot  lies  south  of  the  lot  east  of  the  canal.  The  lots  sold  to 
Hurd  were  survej^ed  and  located  by  the  parties  long  before 
Taylor  purchased.  The  mistake  in  the  deed  to  Hurd  gives 
them  a  difierent  location.  It  carries  the  north  and  south 
boundary  lines  about  forty  links  north  of  their  actual  location, 
and  the  east  and  west  boundary  lines  a  little  to  the  west;  so 
that  a  correction  of  the  error  would  not  affect  the  interest  of 
Taylor.  It  would  w^ould  only  be  correcting  the  deed,  so  as  to 
make  it  agree  with  the  actual  location.  If  the  object  of  the 
bill  was  to  change  the  actual  location  of  the  lots,,  and  to  carry 
them  further  south,  so  as  to  take  in  a  part  of  Taylor's  lot,  it 
would  be  necessary  to  make  him  a  part}^ ;  but  as  that  is  not  the 
object  of  the  suit,  I  cannot  see  he  has  any  interest  in  it  one  wa}- 
or  the  other.  Besides,  Taylor's  deed  does  not  refer  to  any  partic- 
ular deed,  but  describes  his  lot  as  bounded  "  north  by  land  here- 
tofore deeded  to  A.  M.  Hurd.  By  whom  and  when  is 
[■^105]  not  stated.  He  therefore  was  not  *  governed  in  his 
]3urchase  by  complainant's  deed  to  Hurd,  but  by  the 
location  that  has  been  made  of  the  lots. 

2.  Two  of  the  defendants,  Compton  and  Thompson,  were 
examined  as  witnesses  by  complainant,  and  it  is  moved  to  sup- 
press their  depositions.  The  bill  is  taken  as  confessed  against 
Compton,  and  it  does  not  appear  from  the  pleadings  and  proofs 
by  what  kind  of  a  deed  he  conveyed  to  Church  and  Shower- 
man.  If  it  was  by  a  quit  claim  only,  he  would  be  a  competent 
witness  for  either  party.  1  Cow.  R.,  613;  2  Stark.  Ev.,  786. 
A  witness  is  presumed  to  be  competent  until  the  contrary  is 
shown.  But  complainant  asks  no  decree  against  Compton,  al- 
though he  is  a  party  to  the  suit,  and  his  interest,  if  any,  is  adverse 
to  the  complainant. 

Thompson  is  situated  differently.  He  and  Showerman  are 
the  present  owners  of  the  lots  as  tenants  in  common,  and  com- 
plainant asks  a  decree  against  them.  His  deposition  therefore 
must  be  suppressed.  But  complainant  may  still  have  a  decree 
against  him  and  Showerman,  if  there  is  sufficient  evidence  left  to 
warrant  it.  The  rule  on  this  subject  is  not  as  supposed  by  the 
defendants,  that  the  examination  of  a  party  as  a  witness  is  an 
108 


SECOND  CIRCUIT,  JAI^UARY,  1843.  106 

Norris  v.  Hurd. 

equitable  release  to  him,  so  that  a  decree  cannot  be  had  against 
hini,  except  on  matters  to  which  he  was  not  examined.  In 
77iomj)son  v,  Harrison,  1  Cox  Ca.,  341-,  the  complainant  exe- 
cuted a  release  to  one  of  the  defendants,  and  then  examined  him 
as  a  witness  in  the  cause.  In  that  case  it  was  the  release,  and 
not  the  examination,  that  precluded  the  complainant  from  ob- 
taining a  decree  against  the  other  defendant  who  was  only  sec- 
ondarily liable,  the  defendant  who  was  examined  as  a  witness, 
and  who  had  been  released  for  that  purpose,  being  primarily 
liable.  In  Massy  v.  Massy,  1  Beat.  E..,  353,  one  of  the  defend- 
ants w^as  examined  as  a  witness  on  behalf  of  tlie  com- 
plainant, but  the  case  was  *fully  made  out  by  the  bill  [*106] 
and  answer.  The  Chancellor,  adverting  to  the  fact  that 
the  record  made  out  the  case,  decided  that  the  deposition  might 
be  suppressed,  and  a  decree  be  made  as  if  the  party  had  not 
been  examined.  Chancellor  Walworth,  in  Bradley  v.  Root,  5 
Paige  R.,  637,  says,  "  The  reason  of  the  rule  that  the  complain- 
ant cannot  have  an  adverse  decree  against  a  defendant  as  to  a 
])art^of  the  case  to  which  he  has  examined  him  as  a  witness,  is, 
that  it  would  be  charging  him  upon  his  own  evidence,  which 
can  only  be  obtained  against  himself  by  proper  charges  in  the 
bill,  and  by  calling  upon  him  to  answer  in  the  usual  way." 

3.  I  have  no  doubt  from  the  evidence  a  mistake  was  made, 
first  in  the  bond  and  afterwards  in  the  deed  to  Hurd,  in  describ- 
ing the  course  and  distance  of  the  northwest  or  beginning  cor- 
ner of  the  east  lot,  from  the  northeast  corner  post  of  the  head- 
gate  to  the  canal.  The  premises  were  surveyed  and  staked  out 
by  Pettiboue,  at  or  about  the  time  the  purchase  was  made,  and 
before  the  bond  was  given,  in  the  presence,  and  under  the  di- 
rection of  complainant  and  Hurd,  who  agreed  upon  the  start- 
ing point;  and  a  diagram  of  the  lots  was  made,  showing  the 
courses  and  distances,  which,  with  the  beginning  corner,  were 
also  stated  in  writing  at  the  foot  of  the  diagram,  with  a  blank 
left  for  the  course  and  distance  from  the  headgate  to  the  begin- 
ning corner.  The  canal  was  dug  at  the  time  of  the  survey,  and 
a  pit  prepared  for  the  headgate,  the  timber  for  which  was  on 
the  ground,  and  the  blank  was  left  to  be  filled  up  by  the  true 

109 


107  CASES  IN  CHANCERY. 


Norris  r.  Hurd. 


course  and  distance  to  be  ascertained  after  tlie  headgate  was 
erected.  This  blank,  however,  as  appears  from,  the  diagram  whicli 
is  an  exhibit  in  the  cause,  has  never  been  filled.  Bj  what  means 
the  course  and  distance  were  ascertained  when  the  bond  was 

given,  whether  by  survey  or  conjecture,  does  not  appear. 
[*107]  *There  is  no  evidence  of  a  change  of  location  after  the 

survey  by  Pettibone,  If  anything  of  the  kind  had 
taken  place,  it  is  highly  probable  a  new  survey  would  have  been 
made,  and  that  the  stakes  of  the  former  survey  would  have 
been  removed,  and  made  to  correspond  with  the  new  location. 
That  no  change  was  made  is  evident  from  what  afterwards  took 
place.  The  bond  agrees  with  the  diagram,  in  describing  the 
east  lot  as  situate  directly  south  of,  and  adjoining  a  highway, 
clearly  indicating  that  no  part  of  the  highway  was  to  be  in- 
cluded, one-half  of  which  would,  however,  be  included  under 
the  erroneous  description  of  the  beginning  corner  given  in  the 
bond.  Hurd  took  immediate  possession  of  the  lots,  and  built 
a  fence  on  the  south  side  of  them;  and  in  building  this  fence, 
as  well  as  one  or  two  other  fences,  he  was  governed  by^  the 
stakes  placed  in  the  ground  by  Pettibone  w^hen  he  made  the 
survey.  Hurd  ahvays  occupied  the  lots  as  surveyed;  and  there 
can  be  no  doubt  complainant  supposed,  when  the  bond  was 
given,  that  he  was  selling,  and  Hurd  that  he  was  buying,  the 
and  that  had  been  surveyd  by  Pettibone,  and  none  other.  All 
who  have  owned  and  occupied  the  premises  since  that  time, 
have  occupied  them  according  to  the  survey;  and  there  is  no 
evidence  that  any  one  of  the  defendants,  when  he  purchased, 
supposed  he  was  purchasing  any  other  than  the  premises  sub- 
sequently occupied  by  him.  Apple  trees  were  set  out,  and  a 
barn  was  built  so  near  the  south  fence  as  to  be  excluded  from 
the  premises  by  the  deed.  The  question  of  a  bona  fide  pur- 
chaser, therefore,  does  not  arise  in  the  case.  The  complainant 
does  not  ask  to  take  away  anything  from  Thompson  and  Show- 
rman  which  they  supposed  they  were  purchasing  when  the 
premises  were  deeded  to  them.  Sage,  Edmunds,  Godard  and 
Stuart,   when  they    purchased,    were  shown  the   diagram    of 

110 


SECOND  CIRCUIT,  JANUARY,  1843.  108 

Norris  v.  Hurd. 

tlie  survey  made  by  Pettibone,  and  *it  is  to  be  pre-  [*108] 
suiried  they  were  governed  more  by  that,  in  making 
their  purchase,  than  by  tlie  stake  pointed  out  to  them  as  tlie 
northwest  corner  of  the  east  lot.  Why  was  the  diagram  shown 
to  them,  if  it  Avas  not  a  true  representation  of  the  pro])erty 
tliey  were  about  to  purchase?  None  of  them  supposed  at  tlie 
time  they  were  purchasing  any  part  of  the  highway.  The  deed 
to  Edmunds,  Godard  and  Stuart,  describes  tlie  east  lot  as  lying 
directly  south  and  adjoining  the  highicay,  following  the  de- 
scription of  the  premises  contained  in  the  bond  to  Hurd,  which 
bond  Sage  saw  at  the  time  he  purchased  for  his  son. 

On  the  west  lot  there  is  a  furnace  supplied  with  water  from 
complainant's  dam,  and  the  bone  of  contention  between  the 
parties  is  not  whether  the  east  lot  shall  take  in  one-half  of  the 
road  to  the  north  of  it,  but  whether  the  furnace  lot  shall  be 
carried  about  two  rods  further  north,  and  nearer  complainant's 
dam, — the  southeast  and  beginning  corner  of  the  furnace  lot 
being  on  the  south  line  of  the  east  lot,  seventy-nine  links  west- 
erly from  the  southwest  corner  of  it. 

A  decree  must  be  entered  declaring  the  northwest  or  begin- 
ning corner  of  the  east  lot  to  be  north  twenty-three  degrees 
twenty  minutes  west,  one  chain  and  ten  links  from  the  north- 
east corner  post  of  the  lieadgate  that  lets  the  water  into  the 
caiud,  (that  being  the  true  course  and  distance,  as  appears  by  a 
survey  made  since  the  suit  has  been  pending,)  and  not  north 
thirty  degrees  west  one  chain  and  fifty  links  from  the  said  head- 
gate,  which  last  course  and  distance,  instead  of  the  first,  were,  by 
mistake,  put  in  the  deed  from  complainant  to  Hurd,  and  have 
been  transferred  from  Ilurd's  deed  into  all  the  subsequent  con- 
ve^'ances  of  the  premises  down  to  and  including  the  deed  to 
Thompson  and  Showerman.  Aiul  Thompson  and  Showerman, 
by  a  quit  claim  deed  reciting  these  facts,  must  release  to 
"^'complainant  such  parts  of  the  ]u'emises  included  in  the  [*109] 
aforesaid  erroneous  description  as  are  nut  included  in  the 
corrected  description;  and  complainant,  by  a  similar  convey- 
ance, must  release  to  Thompson  and  Showerman  such  parts  of 
the  premises  included  in  the  corrected  description  as  are  not 

111 


no  CASES  m  chai^cert. 


Green  v.  Stone. 


included  in  tlie  aforesaid  erroneous  description.  The  form  of 
the  releases,  if  the  parties  cannot  agree,  to  be  settled  by  a  Master 
of  this  Court,  and  each  party  to  pay  his  own  costs,  and  be  at 
the  expense  of  drawing  and  acknowledging  the  release  to  be 
executed  to  the  opposite  party. 


Cogswell  K.  Green,  Receiver  of  the  Bank  of  Niles, 
V,  PoMEROY  Stone  et  al. 

To  give  this  Court  jurisdiction,  where  recovery  is  sought  of  the  amount  of  a 
lost  note,  it  is  not  necessary  that  it  should  have  been  lost  before  due.^ 

The  bill  in  this  case  was  filed  to  recover  the  amount  of  a  lost 
promissory  note,  for  $500,  dated  March  12th,  1838,  and  made 
by  the  defendant  Norton,  payable  to  the  defendants  Stone  and 
Everts,  at  the  Bank  of  Niles,  ninety  days  after  date,  and  in- 
dorsed by  them,  and  discounted  by  the  bank.  The  note  was 
lost  after  it  became  due. 


C.  W.  Lane,  for  complainant. 

iV.  Ji.  Bamsdell,  for  defendant  Stone 

The  Chancellor.     The  note  was  negotiable,  and  had  been 
indorsed  by  the  payees.     To  give  this  Court  jui'isdiction, 
[*110]  it  is  not  necessary  that  it  should  have  been  lost  *before 
it  was  due.     Ii.  Roidey  v.  Ball,  3  Cow.  E.,  303,  and 
Poole  V.  Smith,  1  Holt  R,  144,  it  was  held  a  recovery  could 
not  be  had  at  law  on  a  lost  note,  although  it  was  past  due  when 
it  was  lost- 
Decree  for  complainant. 


^See  Comp.  Laws,  1871,  §  5,  945,  et  seq. 
112 


SECOND  CmCUIT,  JANUARY,  1843.  Ill 

Comstock  V.  Howard. 


Horace   H.   Comstock   v.   Jacob   M.   Howard   and 
Albert  Stewart. 

Where  S.  held  a  judgment  against  C,  and  C.  executed  a  deed  to  H.  as  trustee, 
authorizing  him,  in  case  the  debt  was  not  paid  in  six  months,  to  sell  the 
land,  it  was  held  that  the  deed  was  a  mortgage,  and  to  bar  the  equity  of 
redemption,  it  should  have  been  foreclosed  at  law,  or  by  bill  in  this  Court.* 

This  was  a  bill  to  redeem  certain  premises  which  had  been 
sold,  and  bid  in  by  one  of  the  defendants. 

The  defendant,  Howard,  ol)tained  a  judgment  against  com- 
})lainant,  in  tavor  of  Stewart,  the  other  defendant,  for  $3,425.24, 
on  June  17th,  1839,  in  the  Circuit  Court  of  the  United  States 
for  the  District  of  Michigan.  \  fieri  facias  was  issued,  and, 
un  June  27tli,  Comstock  called  on  Howard,  and  offered  to  give 
security  for  the  payment  of  the  judgment,  if  Howard  would 
not  cause  a  levy  to  be  made  on  his  property  within  six  months, 
or  would  stay  the  execution  for  that  time;  and,  on  the  same 
day,  he  deeded  to  Howard,  as  trustee,  certain  real  estate  as 
security,  and  authorized  him  to  sell  and  dispose  of  it,  and  ap- 
])ly  the  money  in  payment  of  the  judgment,  and  to  execute  and 
deliver  to  the  purchaser  a  deed,  provided  the  judgment  and 
costs  were  not  paid  within  six  months  from  that  time. 
In  February,  1840,  the  judgment  still  remaining  nnpaid, 
^•Howard  advertised  the  lands  to  be  sold  at  public  auction  pill] 
on  the  28th  day  of  ]\Iarch  following,  at  the  court  house, 
in  the  village  of  Kalamazoo,  at  which  time  and  place  they  were 
sold  to  Stewart  for  $200,  he  being  the  highest  bidder,  and  were 
deeded  to  him  by  Howard. 

Stevens  d;  Pratt,  for  complainant. 

Van  Arjnari,  for  defendants. 


*See  Campau  r.  Chene,  1  Mich.,  400. 

Once  a  mortgage,  always  a  mortgage.  Thompson  v.  Mack,  Han-.  Ch.,  150; 
Batty  V.  Snook,  5  Mich.,  231. 

YoL.  I.— 8  113 


66    385 


112  CASES  IX  CHAKCERY. 

Wliite  V.  Forbes. 

The  Chancellor.  Is  the  deed  from  Comstock  to  Howard 
a  mortgage  to  Howard  intrust  for  Stewart?  If  it  is  a  mort- 
gage, and  not  a  common  deed  of  trust  by  a  debtor  for  the  ben- 
efit of  a  creditor,  Comstock  has  a  right  to  redeem,  on  paying 
Stewart  what  is  due  on  the  judgment. 

Chancellor  Kent  defines  a  mortgage  to  be  the  conveyance  of 
an  estate  by  way  of  pledge  for  the  security  of  a  debt,  and  to  be- 
come void  on  the  payment  of  it.  4  Kent  Com,,  135,  Tlie 
deed,  on  its  face  purports  to  be  given  as  security  for  the  pay- 
ment of  the  judgment,  and  Howard  is  not  authorized  to  sell 
generally,  but  only  on  the  happening  of  a  continrjency^  viz: 
the  non-payment  of  the  judgment  within  six  months.  The  fact 
tliat  the  debt  is  due  to  Stewart,  instead  of  Howard,  does  not 
make  it  any  the  less  a  mortgage.  It  is  not  unusual  for  mort- 
gages to  be  given  to  one  person  in  trust  for  another,  1  Madd. 
Ch.  514;  4  Kent  Com.  146;  Clay  v.  Sharj),  18  Ves.  R,  346,  note. 
To  have  barred  the  complainant's  equity  of  redemption,  How- 
ard should  have  foreclosed  the  mortgage,  eitlier  at  law,  by  ad- 
vertising and  selling  under  the  statute,  or  in  this  Court  by  bill. 

It  appears  that  a  part  of  the  judgment  has  been  collected  on 
one  or  more  executions.  There  must,  therefore,  be  a  reference 
to  a  Master  to  ascertain  the  amount  still  due  on  the  judgment, 
and  all  further  questions  are  reserved  until  the  coming  in  of 
the  report. 


['•112]    ='^Calvin  C.  White  v.  William  Forbes. 

Walker. 

^]m,         The  Court  of  Chancei-y  may  stay  or  prevent  nuisances  by  injunction,  and  the 

complainant  will  not  be  first  required  to  establish  his  rig-lit  at  law,  unless 

doubtful,  and  in  dispute.' 

1  The  provision  of  the  Rev.  Stat,  of  1846,  p.  509,  (Comp.  Laws,  1871,  §  6, 
377)  conferring'  jurisdiction,  in  cases  of  insurance,  on  equity  courts,  was  not 
intended  to  extend  or  enlarge  their  jurisdiction.     Norris  r.  Hill,  1  Mich.,  202. 

114 


THIRD  CIRCUIT,  JANUARY,  1843.  113 

White  r.  Furbcs. 

Where  the  aid  of  this  Court  is  sought  to  protect  the  enjoyment  of  property, 
it  will  not  be  governed  by  the  mere  value  of  the  property,  but  will  inter- 
fere if  the  injury  will  materially  lessen  the  enjoyment  of  it  by  the  owner. 

A  perpetual  injunction  was  granted  to  prevent  the  erection  of  a  dam,  which 
would  have  flooded  the  lands  of  complainant,  on  the  grounds  of  injury  to 
the  proiierty,  and  the  probability  that  disease  would  be  generated  by  the 
overflowing  of  the  water. 

This  was  a  bill  for  a  perpetual  injunction  to  prevent  defend- 
ant from  erecting  a  mill-dam  of  such  height  as  to  overflow 
complainant's  land. 

Complainant  is  the  owner  of  the  east  half  of  northeast  quar- 
ter of  section  eighteen,  town  one  north,  range  eleven  east. 
Gun  River  passes  through  it  from  east  to  west,  and  divides  it 
into  two  nearly  equal  parts;  and  there  are  between  eleven  and 
twelve  acres  of  low  bottom  land  lying  on  the  margin  of  the 
stream,  between  it  and  the  high  land  back  from  the  river.  The 
banks  in  some  places  are  high,  and  the  bottom  land  lies  in 
three  different  pieces,  two  of  which  are  on  the  south  side  of 
the  river.  One  of  these  lies  on  the  west  side  of  the  lot,  and 
contains  about  half  an  acre,  and  the  other  is  on  the  east  side, 
and  contains  nine  and  a  half  acres.  The  other  piece  is  on  the 
north  side  of  the  river,  and  contains  an  acre  and  a  quarter.  In 
1837,  the  defendant  erected  a  mill  and  dam  on  the  river,  a  short 
distance  below  complainant's  land.  The  dam  caused  the  water 
to  rise  on  complainant's  land,  and  to  overflow  and  ren- 
der useless,  for  agricultural  purposes,  two  *of  the  afore-  [*113] 
said  pieces,  containing  together  about  two  acres,  and  also 
between  four  and  seven  acres  of  the  other  piece,  besides  mate- 
rially injuring  the  balance  of  it.  All  the  three  pieces,  with  a 
little  ditching  on  a  small  portion  of  the  largest  one,  could  be 
made  into  good  meadow  land,  if  the  river  were  allowed  to 
flow  in  its  natural  channel,  unobstructed  by  the  dam.  In 
March,  1840,  the  dam  was  carried  away  by  a  freshet,  and  in 
October  following  the  complainant  filed  his  bill. 

Stuart,  for  complainant. 

Stevens,  for  defendant. 

115 


114  CASES  m  CHANCERY. 

White  V.  Forbes, 

The  Chancellok.  This  Court  may  stay  or  prevent  nui- 
sances by  injunction,  K.  S.  499,  Gardner  V.  Yillage  of  JVew- 
lurgh,  2  J.  C.  R,  162.  Sometimes  the  complainant  is  required 
to  establish  his  right  at  law,  before  equity  will  protect  him  by 
injunction  in  the  enjoyment  of  it;  but  that  is  only  when  the 
right  on  which  he  bases  his  claim  to  the  interposition  of  the 
Court  is  doubtful,  and  in  dispute. 

It  is  contended  that  the  injury  is  too  inconsiderable  in  itself 
for  the  Court  to  take  cognizance  of  this  case,  and  that  the 
statute  requires  the  Court  to  dismiss  every  suit  concerning 
property,  except  between  partners  or  for  the  foreclosure  of 
mortgages,  where  the  matter  in  dispute  does  not  exceed  one 
hundred  dollars.  R.  S.  365;  Laws  1839,  p.  221.  This  is  not  a 
suit  to  settle  the  title  to  property.  All  the  complainant  asks  is 
to  be  protected  in  the  enjoyment  of  property,  about  the  title 
to  M^hich  there  is  no  dispute.  The  question  presented  is, 
whether  or  no  the  defendant  shall  be  allowed  to  erect  a  dam  on 
his  own  land,  to  such  a  height  as  to  flow  the  land  of  comj)lain- 
ant,  lying  on  the  river  a  short  distance  above  defendant's 
[^114]  mill.  It  ^is  not  denied,  but  on  the  contrary  is  admitted, 
that  the  old  dam,  before  it  was  carried  away  by  the 
freshet,  caused  the  water  to  oveiiiow  more  or  less  of  complain- 
ant's land.  The  defendant  does  not  place  his  defense  on  this 
ground,  but  upon  another  and  difterent  ground,  viz:  that  the 
land  so  overflowed,  and  which  will  be  again,  if  he  is  allowed 
to  erect  a  new  dam  of  the  same  height  with  the  old  one,  is  of 
little  or  no  value,  and  the  flowing  of  it  not  productive  of  au}^ 
serious  injury.  The  evidence  on  this  point  is  conflicting. 
Some  of  the  witnesses  think  it  would  do  little  or  no  injury, 
while  others  estimate  the  damages  at  from  $300  to  $500.  The 
extent  of  the  injury,  provided  there  be  a  substantial  injury 
done,  is  of  no  very  great  importance.  Every  man  has  a  right 
to  the  enjoyment  of  his  property  undisturbed  by  another,  and 
to  be  protected  in  that  enjoyment;  and,  what  one  may  consider 
of  little  value,  another  may  esteem  very  highly.  The  Court 
will  not,  in  cases  of  this  kind,  be  governed  by  dollars  and  cents 
alone,  but  will  inquire  whether  the  injury  is  of  such  a  nature, 

116 


THIRD  CIRCUIT,  Jx\NUARY,  1843.  115 


Jones  V.  Smith, 


that  it  can  reasonably  be  supposed  to  lessen  materially  the 
cnjoj'ment  of  property  by  its  owner. 

The  complainant  lives  on  the  premises.  They  are  his  home. 
He  places  a  high  value  on  the  land,  and  wants  if  for  a  meadow; 
and  he  is  apprehensive  that  the  flooding  of  it  will  generate  dis- 
ease, and  render  the  atmosphere  of  his  dwelling  less  salubrious. 

Injunction  made  perpetual,  with  costs. 


*Enoch  Jones  v,  James  Smith.  pll5]  ^^^i 

The  filing  of  a  judgment  creditor's  bill,  without  answer  or  the  appointment  of 
a  receiver,  creates  no  lien  upon  the  debtor's  property;  and  complainant, 
upon  defendant's  decease  in  such  case,  loses  his  right  to  prosecute  the  suit. 

This  was  a  petition  under  the  statute  to  revive  a  judgment 
creditor's  suit  against  the  personal  representatives  of  the  de- 
ceased debtor. 

The  petition  stated  the  filing  of  a  judgment  creditor's  bill 
against  James  Smith,  Jun.,  in  his  lifetime,  the  service  of  a  sub- 
poena on  Smith,  and  his  death  before  any  further  proceedings 
were  had;  and  that  Joseph  Addison  Smith  had  been  appointed 
administrator.  It  prayed  a  revival  of  the  suit  against  the  ad- 
ministrator, and  that  he  might  be  required  to  answer  the  bill, 
and  be  decreed  to  pay  petitioner's  debt  out  of  the  assets  in  his 
hands,  in  preference  to  the  other  creditors  of  the  deceased. 

Balch,  for  petitioner. 

The  Chancellor.  If  Smith  had  died  between  the  return  of 
the  execution  and  the  filing  of  the  bill,  the  complainant  could 
not  have  filed  his  bill  against  the  administrator.  Is  this,  then, 
one  of  those  cases  that  may  be  revived  against  the  personal  rep- 
resentatives of  a  deceased  defendant?  I  think  not,  under  the 
circumstances  of  the  case. 

117 


116  CASES  IN  CHANCERY. 

Jones  V.  Smith. 

The  statute  does  not  make  the  filing  of  the  bill  a  lien  on  the 
property  of  the  debtor.  It  authorizes  the  Court  to  decree  a 
satisfaction  of  the  amount  remaining  due  on  the  judgment,  out 
of  any  personal  property,  money,  or  thing  in  action,  be- 
[*116]  longing  to  the  debtor;  and  arms  the  Court  *with  power 
to  compel  a  discovery  of  the  debtor's  property,  and  to 
prevent  his  transferring  it.  The  statute  goes  no  further,  but, 
by  a  law  of  the  Court,  the  creditor  who  first  files  his  bill,  by  his 
diligence,  acquires  a  right  to  have  his  debt  paid  out  of  the  choses 
in  action  belonging  to  the  debtor,  before  other  creditors  are  paid 
who  are  less  vigilant. 

This  preference,  or  priority  of  payment  among  creditors,  is 
sometimes  called  a  lien  in  the  books.  But  there  is  not  much 
resemblance  between  it  and  a  lien,  before  the  specific  property 
out  of  which  the  creditor  is  to  be  paid  has  been  ascertained  by 
the  answer  of  the  debtor,  or  transferred  to  a  receiver  in  the  suit. 
Until  then  there  is  nothing  specific  for  the  lien  to  attach.  Here 
no  answer  was  filed,  nor  was  any  receiver  appointed  in  the  life- 
time of  Smith;  and,  unless  the  filing  of  the  bill,  without  further 
proceedings,  created  a  lien  on  such  property  as  Smith  might 
liave  had  at  the  time,  which  I  am  of  opinion  it  did  not,  the  peti- 
tioner, by  the  demise  of  Smith,  has  lost  his  right  to  prosecute 
his  proceedings  further.  The  suit  had  not  progressed  so  far  as 
to  create  a  lien;  and  the  administrator  stands  in  the  same  rela- 
tion to  petitioner  as  if  no  bill  had  been  filed  against  his  intes- 
tate. 

Prayer  of  petition  denied. 


118 


FIRST  CIRCUIT,  FEBRUARY,  1S43.  117 

Tlioiuas  V.  Stone. 


*Henry  Thomas  v.  Stone  &  Graham.       ['^117] 

A  plea  of  a  bona  fide  purchaser  without  notice,  must  aver,  not  only  a  want 
of  notice  at  the  time  of  the  purchase,  but  also  at  the  time  of  its  comple- 
tion, anil  the  payment  of  the  money.  Tiae  money  must  have  been  actually 
paid  before  notice.^ 

It  is  not  enouf^-h  that  the  party  has  secured  the  money;  he  must  have  i^aid  it, 
or  become  bound  in  such  a  way  that  this  Court  could  not  relieve  him  from 
the  payment  of  it. 

A  complainant  cannot  examine  as  a  witness  a  defendant  ag'ainst  whom  he 
seeks  relief;  if  his  answer  is  insufficient  complainant  should  except,  and  if 
his  testimony  is  sought  to  facts  not  stated  in  the  bill,  it  should  be 
amended."'' 

Tins  was  a  bill  to  foreclose  a  mortgage. 

The  complainant,  January  31st,  1837,  in  consideration  of 
$900,  conveyed  to  Stone  certain  real  estate  situate  in  Auburn, 
Oakland  county,  and  took  back  a  mortgage  on  the  same  prem- 
ises, for  SSOO  of  the  purchase  money.  On  the  24th  day  of 
August  following,  and  before  the  mortgage  to  Thomas  was 
recorded.  Stone  conveyed  the  premises  to  Graham  by  warranty 
deed,  which  was  recorded  on  the  same  day.  The  bill  charged 
Graham  with  notice  of  the  mortgage  when  he  purchased,  and 
that  nothing  had  been  paid  by  him  to  Stone.  Graham,  by  his 
answer,  denied  all  notice,  and  stated  that,  at  the  time  of  the 
execution  of  tlie  deed  to  him,  he  executed  and  delivered  to 
Stone  his  obligation  for  $200,  which  was  unpaid,  and  also  a 
bond  in  the  penal  sum  of  $800,  conditioned  to  reconvey  a  part 

VDixon  V.  Hill,  5  Mich.,  404:  Warner  r.  Whittaker,  6  id.,  133;  Blanchard  v. 
Tyler,  12  id.,  339;  Stone  v.  Welling',  14  id.,  514;  Kahl  r.  Lynn,  34  id.,  360,  a 
chattel  mortgage.  See,  also,  Moshier  v.  Knox  College,  32  111.,  155;  Metropol- 
itan Bank  r.  Godfi-ey,  23  id.,  GOG;  Keys  v.  Test,  33  id.,  316;  Kiser  v.  Hueston, 
38  id.,  252:  DeWolf  v.  Pratt,  42  id.,  210;  Powell  v.  Jeffries,  4  Scam.,  390. 
Otherwise  in  Illinois  as  to  personal  property,  O'Neill  v.  Orr,  4  Scam.,  1. 

-The  Laws  of  1861,  p.  168,  (Comp.  Laws,  1871,  §5966,  et  seq.)  made  parties 
to  suits,  and  other  interested  persons  competent  witnesses.  As  to  the  construc- 
tion of  this  act,  see  Goodrich  i\  Allen,  19  Mich.,  250;  Kimball  v.  Kimball,  16 
id.,  211;  Wright  v.  Wilson,  17  id.,  192;  Moulton  v.  Mason,  21  id.,  364. 

119 


118  CASES  m  cha:ncery. 

Thomas  v.  Stone. 

of  the  premises  to  Stone,  on  his  return  from  the  South,  where 
he  expected  to  be  gone  five  years.  The  bill  was  taken  as 
confessed  against  Stone,  who  was  a  non-resident  defendant. 
Several  witnesses  were  examined  by  complainant;  and 
[*118]  Graham,  by  consent  of  the  parties,  was  ^examined  con- 
cerning the  consideration  that  had  been  paid  by  him. 

O.  D.  J^ichardson,  for  complainant. 

Wm.  Draper,  for  defendant  Graham. 

The  Chancellor.  The  mortgage  to  Thomas  and  the  deed 
to  Graham,  were  given  long  before  the  revised  statutes  took 
eifect;  and,  by  the  statute  in  force  at  the  time  for  the  registry 
of  mortgages,  it  was  provided  that  no  mortgage,  nor  any  deed, 
conveyance,  or  writing,  in  the  nature  of  a  mortgage,  should 
defeat  or  prejudice  the  title  or  interest  of  any  bona  fide  pur- 
chaser of  any  lands  or  tenements,  unless  the  same  had  been 
duly  registered.     Laws  of  Michigan,  (1833)  p.  284. 

A  plea  of  a  hona  fide  purchaser  without  notice  must  aver 
not  only  a  want  of  notice  at  the  time  of  the  purchase,  but  also 
at  the  time  of  its  completion^  and  of  the  payment  of  the 
money.  The  money  must  have  been  actually  paid  before  notice. 
If  a  part  has  been  paid,  and  a  part  remains  unpaid,  the  jiur- 
chaser  will  be  protected  in  what  he  has  paid,  but  not  in  any 
subsequent  payments  made  by  him.  Frost  v.  Beehnan,  1 
J.  C.  E.  301;  Je^vett  v.  Palmer,  7  J.  C.  R.  65.  This  is  what  is 
meant  by  hona  fide  purchaser  in  the  act  referred  to.  Dicker.son 
V.  Tillinyhast,  4:  Paige  R.  215.  There  is  no  difference  "be- 
tween a  purchaser  in  good  faith,  under  the  recording  act  and  a 
hona  fide  purchaser  within  the  decision  of  Courts  of  .Equity 
in  other  cases."  Grimstone  v.  Carter,  4  Paige  R.  421.  The 
registry  laws  were  designed  to  protect  subsequent  purchasers 
and  mortgagees,  who  had  parted  with  their  money,  and  taken 
a  deed,  against  prior  conveyances  by  their  grantors,  of  which 

they  had  no  notice.     They  were  not  made  for  the  protec- 
[■*119]  tion  of  prior  purchasers  or  mortgagees,  who  *stood  in 

need  of  nothing  of  the  kind.     But  equity  will  not  per- 

120 


FIRST  CILICUIT,  FEBRUARY,  1843.  120 

Thomas  v.  Stone. 

mit  a  subsequent  purchaser  to  use  what  the  law  has  placed  in 
his  hand  as  a  shield,  for  a  purpose  not  necessary  to  his  protec- 
tion, and  to  the  injury  of  a  prior  ho)ia  fide  purchaser.  By  the 
English  registry  laws  all  prior  conveyances  are  declared  fraud- 
ulent and  void  against  subsequent  purchasers,  whose  deeds  are 
first  recorded.  Sug.  on  Tend.  498.  And,  at  law,  the  last  con- 
veyance, when  first  recorded,  cai'ries  with  it  the  legal  title, 
although  the  vendee  had  notice  of  the  prior  conveyance;  but 
in  equity,  where  the  intention  is  looked  at,  rather  than  the 
words  of  the  registry  act,  he  is  held  to  be  bound  by  the  previous 
conveyance.     Sug.  on  Vend.  511,  Ed.  of  1820. 

Graham  denies  he  had  any  notice  of  the  mortgage  when  he 
purchased;  and  there  is  no  positive  evidence  on  that  point.  The 
transaction,  when  viewed  in  all  its  parts,  looks  much  like  a  piece 
of  contrivance  to  defraud  Thomas.  It  is  not  necessary,  how- 
ever, to  go  into  the  testimony;  for,  admitting  Graham  had  no 
notice  of  the  mortgage,  still  he  is  not  a  hona  fide  purchaser. 
He  has  paid  nothing.  It  is  not  enough  that  the  party  has  se- 
cured the  purchase  money;  he  must  have  paid  it,  or  become 
bound  for  it  in  such  a  way  that  this  Court  could  not  relieve  him 
from  the  payment  of  it;  as,  by  a  promissory  note,  which  had 
been  negotiated,  or  the  like.  The  bond  for  $200,  if  it  has  been 
assigned  by  Stone,  (of  which  there  is  no  evidence,)  would,  in 
the  hands  of  the  assignee,  be  subject  to  all  equities  existing 
against  it  before  it  was  assigned. 

I  give  no  credence  to  the  testimony  of  Graham  taken  as  a 
witness  in  the  cause.  It  is  at  war  with  his  answer,  and  both 
cannot  be  true,  although  both  are  under  oath. 

The  complainant  had  no  right  to  examine  him  as  a  witness. 
If  he  had  not  answered  to  the  bill  fully,  the  complainant 
should  have  excepted  to  his  answer;  or  if  he  *wished  [*120] 
his  answer  to  facts  not  stated  in  the  bill,  he  should  have 
amended  his  bill  for  that  purpose.  Non'is  v.  Hurd,  ante,  102. 
if  he  had  been  examined  under  the  fifty-fifth  rule  of  the  Court, 
which  saves  the  question  of  competency  till  the  hearing,  his 
deposition  would  be  suppressed  on  the  ground  of  interest;  but 

121 


120  CASES  IN  CHANCERY. 

Stockton  V.  Williams. 

he  was  made  a  witness  by  consent,  and  an  order  of  Court  en- 
tered on  a  stipulation  of  the  parties  for  that  purpose. 
Reference  to  Master  to  compute  amount  due,  etc. 


Thomas  B.  W.  Stockton  and  Chauncey  S.  Payne  v. 
Gakdner  D.  Williams,  Kintzing  Pkitchette,  Cal- 
vin Smith,  Thomas  J.  Deake,  and  Elizabeth 
Lyons.' 

Where  parties  are  trying'  the  right  to  lands  at  law,  and  the  title  of  the  de- 
fendants at  law  is  a  legal  and  not  an  equitable  title,  with  nothing  to  pre- 
vent their  establishing  it  as  fully  at  law  as  in  a  court  of  equity,  this  Court 
will  not  interfere,  but  will  leave  them  to  establish  theh  defense  at  law.^ 

Where  the  defendant  in  such  case,  instead  of  demurring,  submits  to  answer, 
and  does  not  in  his  answer  insist  on  the  objection  as  a  bar  to  the  jurisdic- 
tion of  the  Court,  and  proofs  are  taken  in  the  cause,  it  is  too  late  to  raise 
the  objection  at  the  final  hearing. 

Where  a  treaty  makes  no  special  provision  for  deciding  questions  of  indi\  id- 
ual  identity,  they  must  be  decided  by  the  judicial  tribunals  of  the  coun- 
try.^ 

A  complainant  under  the  act  of  1840,  must  show  a  complete  title  in  himself, 
or  a  right  to  such  title,  before  he  can  call  upon  a  defendant  to  release.* 

'  AflBrmed  in  1  Doug.,  546. 

2  See  Moran  v.  Palmer,  13  Mich.,  367. 

3  See  S.  C.  1  Doug.,  546;  Campau  v.  Dewey,  9  Mich.,  381. 
*SeeS.  C.  IDoug.,  546. 

In  a  bill  to  quiet  title,  it  is  sufficient,  ^jr/wa/ac/e,  that  the  complainant 
makes  out  a  title  apparently  good  as  against  the  defendant.  Hall  v.  Kellogg, 
16  Mich.,  135;  Rayner  v.  Lee,  20  id.,  384. 

See  also,  generally,  Blanchard  v.  Tyler,  12  Mich.,  339;  Sahsbury  v.  Miller, 
14  id.,  160;  Barron  v.  Robbins,  22  id.,  35;  Hanscom  r.  Hinman,  30  id.,  419; 
Dale  V.  Turner,  34  id.,  405. 

A  bill  to  quiet  title  cannot  be  maintained  against  one  in  adverse  posses- 
sion, nor  can  thel  egislature  confer  such  a  right.  Tabor  v.  Cook,  15  Mich., 
322.  See,  also,  Barron  v.  Robbins,  supra.  Nor  will  a  bill  lie  to  quiet  title 
to  unoccupied  wild  lands  not  in  the  actual  possession  of  either  party.  Jen- 
kins V.  Bacon,  30  Mich.,  154. 

122 


FIEST  CIRCUIT,  FEBRUAEY,  1843.  121 

Stockton  V.  Williams. 

By  the  treaty  made  at  Sa<jinaw,  September  24th,  1819,  the  individual  reser- 
veeg  obtained  a  legal  title  to  the  lands  reserved,  vsrhich  attached  as  soon  as 
the  lands  were  located,  and  required  no  further  action  to  complete  it.^ 

The  title  to  lands  may  pass  by  act  of  Congress,  or  treaty  stipulation,  as  well 
as  by  patent.* 

*By  the  Saginaw  treaty,  the  Indian  title  to  the  lands  reserved  did  not     [*121] 
pass  to  the  United  States;  but  the  treaty  operated  as  a  release  both 
by  the  Indians  and  the  government,  of  all  interest  which  either  had  in  the 
lands  resei'ved  in  the  respective  reservees  in  fee  simple. 

Where  a  time  had  been  set  for  the  examination  of  one  of  the  defendant's  wit- 
nesses, and  the  commissioner  aud  complainants'  counsel  attended  and 
waited  an  hour  and  a  half,  during  wliich  time  defendants  did  not  appear 
with  their  witness,  and  complainants  then  left,  refusing  to  wait  longer, 
held  that  new  notice  should  have  been  given  them;  and  the  deposition  of 
the  witness  taken  after  complainants  had  left,  without  such  notice  was 
suppressed. 

The  reservations  of  certain  lands  in  the  treaty  of  Saginaw  are  public  donations, 
made  by  the  Chippewa  nation  to  individuals;  and,  where  two  persons  of 
the  same  name  claim  a  particular  resei"vation,  hearsay  evidence  is  admis- 
sible to  show  for  whom  it  was  intended.  General  hearsay  or  public  repu- 
tation at  the  time  of  the  treaty  among  the  Indians  and  those  present  at  it, 
and  among  the  Indians  since  that  time  and  before  any  controversy  arose, 
is  good  evidence  for  that  purpose;  so  is  evidence  of  what  a  person  has 
said  before  such  controversy  arose,  who  was  present  at  the  treaty,  and 
would  be  likely  fx'om  the  circumstances  to  know  for  whom  the  donation 
was  intended,  and  is  dead.  But  evidence  of  the  declarations  of  a  living 
person  under  such  circumstances  cannot  be  received.'^ 

What  a  witness  has  heard  post  litem  nwtam,  (by  which  is  meant  since  the 
dispute  has  arisen,  and  not  merely  the  commencement  of  suit,)  is  not 
evidence. 

Where  the  complainants  under  the  statute  of  1840,  in  order  to  obtain  the 
decree  sought,  were  requh-ed  to  substantiate  their  own  title,  held,  that  the 
defense  of  one  defendant  enures  to  the  benefit  of  the  rest. 

Bill  to  remove  a  cloud  on  complainants'  title. 
The  bill  was  filed  June  lltli,  1840,  and  stated  that,  by  a 
treaty  between  the  United  States  and  the  Chippewa  Indians, 

1  See  S.  C.  1  Doug.,  546;  Dewey  v.  Campau,  4  Mich.,  565;  S.  C.  9,  id., 
381. 

*  See  Ballou  v.  O'Brien,  20  Mich.,  304;  Johnson  v.  Ballou,  28  id.,  379; 
Busch  V.  Donohue,  31  id.,  481. 

"See  S.  C.  1  Doug.,  546;  Campau  r.  Dewey,  9  Mich.,  413. 

123 


122  CASES  IX  OHAXCERY. 

Stockton  r.  Williitms. 

concluded  on  the  2-4th  of  September,  1819,  Mokitclienoqna 
alias  IS^ancj  Smith,  (and  since  her  intermarriage  with  Alexan- 
der D.  Crane,  Kancy  Crane,)  became  entitled  to  a  section  of 
land  near  the  Grand  Traverse  of  the  Flint  river.  That  she  was 
of  Indian  descent,  and  the  reputed  daughter  of  Jacob  Smith,  an 
Indian  trader,  and  that  she  had  always  been  known  and  recogniz- 
ed among  the  Chippewa  Indians  by  the  name  of  Mokitchenoqua. 

That  other  sections  were  reserved  at  the  same  place  for 
[*122]  *other  persons  of  Indian  descent;  and  that,  to  give  full 

effect  to  the  treaty,  it  became  necessary  for  the  Execu- 
tive of  the  United  States  not  only  to  cause  to  be  located  and 
surveyed  the  several  sections,  according  to  the  object,  intent 
and  meaning  of  the  treaty,  but  also  to  designate,  identify,  rec- 
ognize and  put  into  possession  of  the  different  sections,  the  seve- 
ral individuals  entitled  to  each;  which  was  attended  with  many 
difficulties,  by  reason  of  the  little  intercourse  which  had  ex- 
isted between  the  claimants  and  the  Indians  on  the  one  hand, 
and  the  citizens  of  the  United  States  on  the  other;  and  because 
different  persons  claimed  the  same  land  under  the  same  name. 
That  the  President  caused  the  several  sections  that  were  to  be 
located  at  the  Grand  Traverse,  amounting  in  all  to  eleven,  to 
by  surveyed  and  located  under  the  treaty;  and  designated  sec- 
tion number  eight  on  the  jjlat  of  the  survey  for  Mokitcheno- 
qua.  That  the  Secretary  of  the  Treasury,  under  the  direction 
of  the  President,  instructed  the  Register  and  the  Receiver  of 
the  land  office  at  Detroit  to  investigate  and  determine  the  re- 
spective persons  to  whom  the  lands  belonged;  and  that  they, 
after  investigating  the  matter,  determined  N^ancy  Crane  was 
the  person  called  Mekitchenoqua  in  the  treaty,  and  certified  their 
determination,  and  the  evidence  taken  by  them,  to  the  general 
land  ofiice  at  Washington,  which  determination,  after  having 
been  received  by  the  commissioner  of  the  land  ofiice,  was  con- 
firmed August  5th,  1835,  and  a  certificate  given  on  the  same 
day  that  Mokitchenoqua,  alias  Nancy  Crane,  formerly  Nancy 
Smith,  was  entitled  to  said  section  eight,  agreeably  to  the 
treaty.  June  30th,  1835,  Nancy  Crane  and  her  husband  re- 
leased all  their  interest  to  John  Garland,  from  whom  the  com- 

124 


FIRST  CIRCUIT,  FEBRUARY,  1843.  123 

Stockton  V.  Williams. 

])lainants  derived  their  title;  and  she  and  her  liusband  after- 
wards, February  10th,  1837,  deeded  two-thirds  of  the  same 
to  Calvin  Smith  and  Thomas  J,  Drake,  who  were 
*charged  with  notice  of  Garland's  deed.  That,  March  [*123] 
7th,  1840,  a  patent  was  issued  to  Mokitchenoqua,  alias 
Nancy  Crane,  wife  of  Alexander  D.  Crane,  formerly  Nancy 
Smith.  That  Elizabeth  Lyons,  assuming  the  name  of  Mokit- 
chenoqua, pretended  and  insisted  she  was  the  person  meant  by 
the  treaty,  and  presented  her  claim  to  the  Register  and  Re- 
ceiver at  Detroit,  who  gave  her  a  certificate  to  that  effect,  which 
certificate  was  afterwards  superseded  by  the  certificate  given  to 
Nancy  Crane.  That  Elizabeth  Lyons,  still  pretending  to  have 
some  right  or  interest,  on  tlie  iih  of  April,  1838,  deeded  the 
section  to  Gardner  D.  AVilliams  and  Kintzing  Pritchette,  who, 
in  February,  1840,  caused  an  action  of  ejectment  to  be  brought 
against  the  complainant  Payne,  The  bill  prayed  defendants 
miirht  be  decreed  to  release  their  claim  to  the  premises,  and 
Williams  and  Pritchette  be  restrained  from  prosecuting  their 
action  of  ejectment. 

"Williams,  by  his  answer,  admitted  the  making  of  the  treaty, 
the  reservation  by  it  of  eleven  sections  of  land  at  the  Grand 
Traverse  of  Flint  river,  and  that  one  of  the  number  was 
reserved  for  a  girl  named  ]\[okitchenoqua;  but  denied  Nancy 
Smith  was  the  person  intended,  or  that  she  was  known  by  that 
name  among  the  Chippewa  Indians.  He  also  admitted  the 
several  sections  had  been  surveyed,  marked  and  numbered,  and 
section  eight  assigned  to  Mokitchenoqua  under  the  treaty; 
admitted  the  instructions  given  to  the  Register  and  Receiver 
of  the  land  office  at  Detroit,  and  the  patent  of  March  7th,  1840^ 
as  stated  in  the  bill,  but  insisted  that  he  and  Pritchette  were 
not  affected  by  them.  Stated  that  Elizabeth  Lyons,  the 
daughter  of  Archibald  Lyons,  an  Indian  trader,  was  the  person 
intended  by  the  treaty.  That  ]\Iokitchenoqua  was  her  Indian 
name,  that  it  was  given  to  her  by  the  Indians  when  she 
was  an  infant,  and  before  the  treaty  of  *Saginaw;  that  [*124] 
the  chiefs  at  the  treaty  intended  to  give  her  a  section  of 
land,  and  that  the  same  was  reserved  for  her  by  her  Indian 

125 


125  CASES  IX  CIIAXCEEY. 

Stockton  r.  Williams. 

name  of  Mokitchenoqua.  That  she  received  a  certificate  from 
the  Register  of  the  land  office  at  Detroit;  that  she  was  Mokitch- 
enoqua, and  that  she  was  the  first,  and  for  many  years  the 
only  applicant,  and  received  her  certificate  of  identity  August 
2d,  1824.  That  Marie  Lavoy  received  a  like  certificate  Febru- 
ary 7th,  1827,  and  N'ancy  Crane  January  22d,  1831.  That 
Elizabeth  Lyons,  on  the  4th  of  April,  1838,  conveyed  to  "Wil- 
liams and  Pritchette,  who  had  brought  an  action  of  ejectment 
against  Payne. 

Pritchette  put  in  a  similar  answer,  and  the  bill  was  taken  as 
confessed  against  the  other  defendants,  Elizabeth  Lyons,  Thomas 
J.  Drake,  and  Calvin  Smith. 

Fraser^  Romeyn  and  Davidson,  for  complainants. 

Walker  and  Hunt,  for  Williams. 

IF.  Rale,  for  Pritchette. 

A.  D.  Fraser.  The  complainants  are  entitled  to  the  relief 
sought,  on  the  following  grounds. 

1.  A  patent  having  duly  and  according  to  law  been  issued 
])y  the  government  of  the  United  States  for  the  section  of  land 
in  dispute,  it  is  incumbent  on  the  defendants  to  get  rid  of  the 
patent,  by  taking  the  proper  steps  with  that  view,  and  showing 
that  the  officer  who  executed  the  same  transcended  his  pow-ers, 
or  that  the  transaction  was  tainted  wath  fraud. 

To  set  aside  the  patent,  the  defendants  must  proceed  directly, 
by  scire  facias,  or  bill  in  chancery. 

2.  Adverse  possession.      The  defendants  admit  the  posses- 

sion, occupancy  and  improvements  of  the  land  in  question, 
[*125]  *by  complainants,  prior  to  the  date  of  the  deed  from  E. 

Lyons  to  the  defendants  Williams  and  Pritchette.  This 
operates  as  a  bar. 

3.  Champerty  and  maintenance.  The  defendants  conce- 
ding the  occupancy  and  improvements  of  the  complainants, 
any  grant  executed  by  any  other  person  was  void. 

4.  The  pleadings  admit  the  allegations  in  the  bill  of  com- 

126 


FIRST  CIRCUIT,  FEBRUARY,  1SI3.  li^(; 


Stockton  V.  Williams. 


plaint,  and  matter  in  avoidance  or  discharge  set  up  in  tlie 
answer,  must  be  proved. 

5.  Indian  testimony  is  not  entitled  to  much  if  any  weight 
at  all. 

The  reporter  has  not  been  furnished  with  briefs  by  the  other 
counsel  for  the  complainants. 

IT.  iV.  Walker,  contra. 

I.  It  appears  by  the  treaty  of  Saginaw,  of  1819,  that  the  . 
land  in  dispute  was  granted  to  an  Indian  girl  named  Mokit- 
chenoqua.  Each  party  claims  to  hold  under  the  person  named 
in  the  treaty,  although  their  titles  are  derived  through  differ- 
ent individuals.  The  question  of  identity  must  be  decided  l)y 
the  judicial  tribunals. 

II.  The  treaty  is  perfect,  and  conveys  to  the  several  per- 
sons named,  the  land  mentioned,  in  fee  simple.  It  is  no 
objection  to  the  grant  that  the  land  has  to  be  designated  by  tlie 
President. 

III.  If  Elizabeth  Lyons  was  the  person  named  in  tlie 
treaty,  the  patent  cannot  give  the  complainants  any  title 
to  demand  a  surrender  of  the  claims  of  herself  or  her  as- 
signs. 

1.  A  patent  is  no  bar  to  the  assertion  of  equitable  rights 
existing  before  its  date. 

2.  A  grant  is  absolutely  void  where  the  state  has  no  right 
or  title  to  the  thing  granted,  or  when  the  officer  has  no  author- 
ity to  issue  the  grant. 

*IY.     The  ground  of  adverse  possession  is  no  founda-  [*126] 
tion  for  offensive  operations.     If  of  any  validity,  it  can 
only  be  set  up  as  a  defense. 

V.  The  same  objection  applies  to  champerty  and  main- 
tenance. We  insist,  moreover,  that  the  docti-ine  of  champerty 
and  maintenance  is  not  law  in  this  State. 

The  Chancellor.  The  statute  i\nder  which  the  complain- 
ants filed  their  bill.  Laws  1840,  p.  127,  provides  that  any  per- 
son, having  the  possession  and  legal  or  equitable  title  to  lands, 

127 


127  CASES  IX  CHANCEPwY. 

ytockton  V.  Williams. 

uiaj  institute  a  suit  against  any  other  person  or  persons,  set- 
ting up  a  claim  thereto,  and  if  the  complainant  shall  be  able 
to  substantiate  his  title  to  such  land,  the  defendant  shall  be 
decreed  to  release  to  the  complainant  all  claim  thereto.  The 
defendants,  Williams  and  Pritchette,  insist  that,  inasmuch  as 
they  had  brought  an  action  of  ejectment  against  Payne,  for  the 
purpose  of  trying  their  title  at  law,  before  the  complainants 
tiled  their  bill  in  this  Court,  the  bill  of  complaint  should  be 
dismissed  as  to  them  for  want  of  jurisdiction  under  the  statute, 
which  they  contend  should  be  construed  to  apply  to  claims 
only  which  the  party  was  not  proceeding  to  establish  at  law,  at 
tlie  time  of  filing  the  bill.  The  object  of  the  statute  seems  to 
be  to  enable  a  person  in  possession  of  real  estate,  and  having  a 
title  thereto,  to  remove  all  doubts  in  regard  to  his  title  arising 
from  the  claims  of  third  persons  who  are  taking  no  stej)s  to 
test  the  validity  of  their  claim,  either  at  law  or  in  equity,  and 
who,  by  their  refusal  or  neglect  to  institute  proceedings  for 
that  purpose,  keep  the  party  in  possession  in  a  state  of  sus- 
pense. This  is  the  extent,  I  think,  to  which  this  Court  should 
ffo  under  the  statute.  A  difterent  construction  of  the  act 
would  leave  it  optional  with  every  defendant  in  ejectment  to 

litigate  his  title  either  at  law  or  in  this  Court,  and,  by 
[-127]  filing  his  bill  here,  to  take  from  his  '^adversary  the  right 

to  have  the  facts  of  the  case  passed  upon  "by  a  jury  of 
tue  country.  Such,  therefore,  it  seems  to  me,  is  the  construc- 
tion that  should  be  given  to  the  statute,  where  the  title  of  the 
defendant  in  ejectment  is  a  legal  and  not  an  equitale  title,  and 
there  is  nothing  to  prevent  his  establishing  it  as  fully  at  law 
as  in  a  court  of  equity.  But  the  defendants  come  too  late 
with  their  objection.  They  should  have  demurred  to  the  bill, 
or  insisted  on  the  want  of  jurisdiction  in  their  answer,  as  a 
bar  to  the  Court's  taking  cognizance  of  the  suit.  Grandin  v. 
LeRoy,  2  Paige  R.  509.  Where  the  defendant,  instead  of 
demurring,  submits  to  answ^er,  and  does  not  insist  on  the 
objection  in  his  answer  as  a  bar  to  the  jurisdiction  of  the 
court,  and  thereby  put  the  complainant  on  his  guard  as  to 

128 


FIIIST  CIRCUIT,  FEBRUARY,  1843.  128 

Stockton  t'.  Williams. 

further  proceeding's,  and  proofs  are  taken  in  the  cause,  it  is  too 
late  to  raise  the  objection  on  tlie  final  liearing. 

Having  disposed  of  the  question  of  jurisdiction,  I  will  pro- 
ceed to  decide  snch  other  questions  raised  on  the  argument,  as 
are  necessary  to  a  decision  of  the  case. 

Article  third  of  the  treaty  says:  "There  shall  be  reserved, 
for  the  use  of  each  of  the  persons  liereinafter  mentioned,  and 
their  heirs,  which  persons  are  all  Indians  by  descent,  the  fol- 
lowing tracts  of  land;"  and,  after  making  a  mimber  of  reserva- 
tions, proceeds  as  follows:  "For  the  nse  of  Nowokeshik, 
Metawanene,  Mokitchenoqua,  Nondashemau,  Petabonaqua, 
Messawwakut,  Checbalk,  Kitchegeequa,  Sagosequa,  Annoketo- 
<[ua,  and  Tawcumegoqua,  each,  six  hundred  aivd  forty  acres  of 
land,  to  be  located  at  and  near  the  Grand  Traverse  of  the  Flint 
river,  in  such  manner  as  the  President  of  the  United  States 
may  direct.  Under  this  part  of  the  treaty,  and  in  pnrsuance 
of  the  last  clause  of  it,  eleven  sections  of  land  were  smweyed 
and  located  by  the  direction  of  the  President,  at  the  Grand 
Traverse  of  the  Flint  river,  and  one  of  said  sections 
^assigned  to  each  of  the  aforesaid  reservees;  section  eight  [*128] 
being  resigned  to  Mokitchenoqua.  There  are  two  per- 
sons who  claimed  that  name  and  the  aforesaid  section;  both 
females,  both  of  Indian  descent,  and  both  half-breeds;— their 
mothers  being  Indians,  and  their  lathers  white  men.  The 
complainants  derive  their  title  from  one  of  these  females,  and 
AVilliams  and  Pritchette  from  the  other;  the  former  from 
Xanev  Smith,  the  daughter  of  Jacob  Smith,  an  Indian  trader, 
and  the  latter  trom  Elizabeth  Lyons,  who  is  also  a  defendant, 
the  daughter  of  Archibald  Lyons,  another  Indian  trader.  Such 
is  the  origin  of  the  present  suit.  The  complainants  contend 
that  Nancy  Smith  was  the  person  intended  by  the  treaty,  and 
Williams  and  Pritchette  that  Elizabeth  Lyons  was  that  person. 
Before  examining  the  evidence  on  this  point,  it  is  necessary  to 
decide  another  point  made  by  the  complainants,  viz:  Whether 
it  is  competent  for  this  Court,  in  the  present  suit,  to  decide 
M'hich  of  these  persons  M'as  meant  by  the  treaty?  It  is  con- 
tended   the  patent   of   March  7th,  1840,    recognized  Nancy 

YoL.  l.—O  129 


129  CASES  m  CHANCEEY. 

Stockton  V.  Williams. 

Smith  as  that  person,  and  vested  the  title  in  her;  and  that  this 
Conrt  cannot  go  back  of  the  patent.  Now,  there  is  nothing  in 
the  treaty  authorizing  the  President,  or  any  other  officer  of  the 
government,  to  decide  which  of  these  two  individuals,  Nancy 
Smith  or  Elizabeth  Lyons,  is  the  true  Mokitchenoque  or  person 
meant  by  the  treaty.  This  question,  (if  necessary,)  like  all 
others,  must  be  decided  by  the  judicial  tribunals  of  the 
country.  It  can  be  decided  in  no  other  way,  as  the  treaty  has 
not  provided  for  its  decision.  Supposing  it,  therefore,  to  be 
true  that  the  President,  by  issuing  a  patent  to  "  Mokitcheno- 
qua,  (alias  Nancy  Crane,  wife  of  Alexander  D.  Ci'ane,  formerly 
Nancy  Smith,")  has  decided  that  Nancy  Smith  is  the  person 
meant  by  the  treaty;  and  suppose  it  also  to  be  true  that  no 
title  to  the  land  passed  by  the  trea^ty,  and  that  a  patent 
[*129  1  *was  necessary  to  transfer  the  legal  title  from  the  gov- 
ernment to  the  reservees  under  the  treaty;  still,  so  long 
as  the  question  has  been  raised,  this  Court  is  bound  to  decide  it. 
For,  if,  on  investigation,  it  should  turn  out  that  Elizabeth  Ly- 
ons, and  not  Nancy  Smith,  was  the  person  intended,  the  equi- 
table title  would  be  in  Elizabeth  Lyons  or  her  grantees,  not- 
withstanding the  legal  title  might  be  in  the  complainants; 
and,  that  being  the  case,  this  Court  would  not  decree  the  de- 
fendants to  release  such  equitable  title  to  the  complainants, 
whose  grantor  had  improperly  and  wrongfully  obtained  the 
legal  title.  The  complainants  must  show  a  complete  title  in 
themselves,  or  a  right  to  such  title,  before  they  can  call  upon 
the  defendants  to  release.  It  is  not  enough  that  they  show  a 
legal  title  to  the  premises,  if  the  defendants  have  the  equitable 
title,  unless  they  likewise  show  that  they  are  in  equity  entitled 
to  the  equitable  title  also.  I  am  of  opinion  the  legal  title  to 
the  land  after  it  was  located  passed  by  the  treaty,  and  not  bv 
the  patent.  The  treaty,  after  reserving  to  Mokitchenoqua  and 
the  other  reservees  six  hundred  and  forty  acres  of  land  each, 
says  it  shall  "  be  located  at  and  near  the  Grand  Traverse  of  the 
Flint  river,  in  such  manner  as  the  President  of  the  United 
States  may  direct."  It  makes  no  mention  of  a  patent,  nor  does 
it  require  the  President  or  other  officer  of  the  government, 
130 


FIEST  CIECUIT,  FEBRUARY,  1843.  130 

Stockton  r.  Williams. 

after  the  lands  have  been  located,  to  do  any  act  whatever  recog- 
nizino-  the  rii^ht  of  the  several  reservees  to  the  different  sections. 
xA.!!  it  required  of  tlie  President  was  to  have  tlie  lands  located, 
at  and  near  a  particular  place  pointed  out  by  the  treaty.  To 
locate  does  not  mean  to  patent,  but  to  have  the  several  sections 
surveyed  and  marked  out,  and  a  map  made  of  them,  showinir 
the  particular  section  belonging  to  each  of  the  reservees.  This 
was  done;  and  when  it  was  done,  this  j^art  of  the 
treaty  was  fully  executed  on  the  part  of  *tlie  government.  [*1 30] 
Nothing  further  was  required  to  carry  it  into  effect,  and 
the  title  then  vested  in  the  respective  reservees,  unless  we 
hold  the  treaty  itself  to  be  clearly  defective,  in  not  providing 
for  the  execution  of  its  several  stipulations.  A  patent,  although 
the  usual,  is  by  no  means  the  only  mode  in  which  the  title  to 
the  public  domain  can  pass  from  the  government  to  an  indi- 
vidual. It  may  pass  by  an  act  of  Congress,  or  by  a  treaty  stip- 
ulation, as  well  as  by  a  patent.  The  Indian  title  to  the  land 
reserved,  did  not  pass  to  the  United  States  by  the  treaty,  which 
operated  as  a  release,  by  both  the  Indians  and  government,  of  all 
interest  either  had  in  the  lands  reserved  to  the  respective  res- 
ervees, in  fee  simple;  and  it  would  be  a  violation  of  the  treaty 
for  the  government  to  claim  the  land  in  question. 

It  is  necessar}",  in  the  next  place,  to  determine  the  nature 
and  character  of  the  evidence,  by  whicii  the  parties  must  es- 
tablish their  rights  under  the  treaty.  This  is  no  easy  task. 
The  testimony  is  vohiminous,  and  exceptions  have  been  taken 
by  one  party  or  the  other  to  nearly  the  whole  of  it,  and  the  case 
itself  is  peculiar.  I  shall  therefore  not  notice  each  particular 
exception,  but  proceed  to  lay  down  such  rules  as  should,  in  mv 
opinion,  determine  the  kind  of  evidence  to  be  received,  and  the 
circumstances  under  which  it  is  admissible;  holding,  at  the 
same  time,  such  parts  of  the  testimony  taken  as  come  within 
these  rules,  as  competent  evidence,  and  such  parts  as  do  not 
come  within  them,  as  incompetent. 

I  will  first,  however,  dispose  of  a  motion  made  at  the  heai-- 
ing,  to  suppress  the  dejiositions  of  Than-en-dng-a-na  and 
Charles  H.  Eood,  for  irregularity.     The  commissioner  before 

131 


131  CASES  i:^  CHAKCEEY. 

Stockton  V.  Williams. 

whom   these    witnesses   were    examined,   after   having  taken 
the  examination  of  a  number  of  other  witnesses,  adjourned 

over  to  nine  o'clock  the  next  morning.  At  the 
[*131]  *hour  appointed,  the  commissioner  and  counsel  of  the 

complainants  aj)peared,  and  waited  until  past  ten  o'clock 
for  the  defendants;  when,  neither  the  defendants  nor  their 
counsel  or  witness  appearing  to  proceed  with  the  examination, 
the  complainants'  counsel  left,  insisting  that  he  was  not  hound 
to  wait  longer  for  the  defendants.  At  eleven  o'clock  the  de- 
fendants appeared,  and  took  the  depositions  of  the  witnesses 
above  stated,  no  one  appearing  for  the  complainants.  An  hour 
and  a  half,  during  which  time  neither  the  opposite  party,  coun- 
sel, nor  witness  appeared  to  proceed  with  the  examination, 
was,  I  think,  sufficient  indulgence  shown  to  the  defaulting 
party.  It  would  be  oppressive,  under  such  circumstances,  to 
require  one  party  to  wait  longer  for  the  other.  If  the  defend- 
ants, or  their  counsel,  had  been  present,  and  the  examination 
had  been  delayed  by  the  non-attendance  of  a  witness,  the  case 
would  have  been  different.  The  defendants  should  have  given 
notice  anew  of  the  examination  of  these  witnesses,  before 
taking  their  testimony.  Their  depositions  must,  therefore,  be 
suppressed. 

Hearsay  evidence  is  admissible  to  show  which  of  the  two 
persons  claiming  under  the  treaty  by  the  same  name  is  the 
person  intended.  I  cannot  well  see  how  the  right  of  either  can 
be  established  without  the  aid  of  this  kind  of  evidence.  The 
reservations  were  donations  made  by  tlie  Indians  to  the  several 
reservees  named,  in  the  treaty,  and  formed  a  part  of  the  consid- 
eration received  by  them  for  the  lands  ceded  to  the  government. 
They  were  not  the  donations  of  an  individual,  but  of  the  Chip- 
pewa nation,  or  people,  by  a  public  act  of  theirs,  which 
concerned  alike  the  whole  Chippewa  nation.  This  case,  then, 
comes  within  the  exception  of  the  general  rule  excluding  hear- 
say evidence;  which  exception  admits  it  on  questions  of  public 
right,  as  to  prove  a  custom,  a  right  of  common,  public 
[*132]  ^boundaries,  highways,  and  the  like.  1  Stark.  Ev.,  60;  1 
Phil.  Ev.,  248;  Cow.  and  H.  notes  on  Phil.  Ev.,vol.  2, 

132 


FIRST  CIRCUIT,  FEBRUARY,  1843.  133 

Stockton  V.  "Williams. 

notes,  475  and  477;  Greenleaf's  Ev.,  152.  Hearsay  evidence  is 
admitted  in  such  cases,  because  tlie  public  having  an  interest  in 
the  (question,  the  right  is  sup|)osed  to  have  been  a  subject  of 
frequent  discussion  with  individuals,  liaving"the  same  induce- 
ments, and  equal  means  to  obtain  correct  information  relating 
to  it  It  is  admitted  usually,  though  not  always,  from  the  ne- 
cessity of  the  case,  on  questions  touching  ancient  rights  or 
pedigree.  The  right  in  controversy,  it  is  true,  is  not  an  ancient 
right,  the  treaty  having  been  made  in  1819,  a  little  more  than 
twenty-three  years  ago;  yet  the  same  necessity  exists  for  ad- 
mitting this  kind  of  evidence  in  this  case,  as  in  cases  involving 
ancient  rights,  viz:  the  utter  impossibility  of  proving  by  any 
other  kind  of  evidence  whether  JX^ancy  Smith,  or  Elizabeth 
Lyons,  is  the  person  for  whom  the  reservation  was  made. 

This  kind  of  evidence,  at  best,  is  not  very  satisfactory,  and 
must  be  admitted  under  certain  restrictions  and  limitations. 
General  hearsay,  or  public  reputation,  at  the  time  of  the  treaty, 
among  the  Indians  and  others  present  at  the  treaty,  and  among 
the  Indians  since  that  time  and  before  any  controversy  arose 
among  the  different  claimants,  is  good  evidence.  So  is  evi- 
dence of  what  a  person  who  is  dead  has  said,  who  was  present 
at  the  treaty,  and  would  be  likely,  from  that  circumstance,  to 
know  for  whom  the  reservation  was  made.  Hahorg  v.  Ham- 
mond, 2  Har.  &  Gill,  42,  52;  Cow.  &  II.  notes  to  Phil.  Ev., 
vol.  2,  p.  615,  note  462;  Weeks  v.  Sjxcrks,  1  M.  &  S.,  679,  per 
LeBlanc,  J.,  688.  The  declarations  of  Jacob  Smith  and  Archi- 
bald Lyons  are  admissible  on  this  ground.  General  hearsay, 
or  reputation  is  made  up  of  the  declarations  of  individuals;  but, 
what  a  particular  person  has  said,  who  was  at  the  treaty,  and 
who  is  still  living,  and  might  be  used  as  a  witness,  should 
not  *be  received.  The  individual  himself,  should  be  [*133j 
made  a  witness,  that  the  adverse  party  might  have  an 
opportunity  to  test  the  correctness  of  his  information,  by  in- 
quiring into  its  source,  and  the  opportunities  he  had  for  ob- 
taining it.  But  what  a  number  of  individuals  have  been  heard 
to  say  on  the  subject,  is  evidence  of  general  reputation;  the 
weight  to  be  given  to  such  testimony,  depending  on  the  uum- 

133 


134  CASES  IN  cha:n'ceky. 

Stockton  v.  Williams. 

bers,  whether  few  or  many,  from  whom  the  witness  received 
his  information. 

What  the  witness  has  heard  post  litetn  motam,  or  since  the 
dispute  has  arisen,'  (for  that  is  what  is  meant,  and  not  the  com- 
mencement of  the  suit,)  is  not  evidence.  The  Berkley  Peer- 
age case,  4  Camp.  R,  401 ;  Richards  v.  Bassett,  10  Barn.  & 
Cres.  R.  657;  Do  clem.  Tilmen  v.  Tarver,  Ryan  &  Moody  R. 
141;  Moiiktori  v.  The  Attorney  General,  2  Russ.  &  Myl.  160. 
It  should  appear  that  the  declaration  or  information,  came  from 
a  person  who  was  likely  to  know  the  truth  of  what  he  stated, 
and  who  had  no  motive  at  the  time  to  misrepresent  it,  or,  in 
the  language  of  Lord  Eldon,  in  Whitlocke  v.  Baker,  13,  Yes. 
R.  514,  the  declaration  should  be  "  the  natural  effusion  of  a 
party,  who  must  know  the  truth,  and  who  speaks  upon  an  oc- 
casion when  his  mind  stands  in  an  even  position,  without  any 
temptation  to  exceed  or  fall  short  of  the  truth."  To  admit 
declarations  made  after  a  controversy  had  arisen,  touching  the 
subject  matter,  would  open  a  door  for  the  fabrication  of  testi- 
mony, and  of  imposition  on  the  court,  and  in  all  probability 
would,  in  the  long  run,  be  productive  of  more  evil  than  the  re- 
jection of  hearsay  evidence  altogether.  And  to  fix  on  the  com- 
mencement of  the  suit,  as  the  dividing  line,  would  be  little 
better  than  no  rule;  for  it  would  still  be  in  the  power  of  a 
party,  before  suit  brought,  to  corrupt  the  only  medium  through 
which  the  truth  might  be  attained.     E"o  rule,  except  the  one 

stated,  will  effectually  guard  against  abuse. 
[*134]      *The  lis  mota,  in  the  present  suit,  dates  as  far  back  as 

February  Ttb,  1 827.  IsTo  less  than  three  jDersons,  at  differ- 
ent times,  obtained  certificates  from  the  Register  and  Receiver  of 
the  land  office  at  Detroit,  identifying  the  applicant  as  the  per- 
son intended  by  the  treaty.  The  first  was  Elizabeth  Lyons, 
who  obtained  her  certificate  August  2d,  1824.  The  next  was 
Marie  Lavoy,  who  obtained  a  certificate  February  7th,  1827; 
and  the  last,  N'ancy  Smith,  alias  Crane,  who  obtained  her  cer- 
tificate, July  22d,  1831.  There  were  then,  as  early  as  February 
7th,  1827,  if  not  before,  two  claimants  to  the  land,  under  the 
treaty.     The  question,  who  is  Mokitchenoqua?  began   to   be 

134 


FIRST  CIRCUIT,  FEBRUARY,  1843.  13: 

Stockton  t'.  Williams. 


agitated.  And  in  1828,  or  1829,  according  to  the  testimony  of 
Antoine  Chami)au,  the  chiefs  lield  a  council  at  Saginaw,  to 
prove,  as  tlie  witness  states,  before  one  Stanard,  a  justice  of  the 
peace,  and  in  the  presence  of  Archibald  Lyons,  that  they  had, 
at  the  treaty,  given  his  daughter,  Mokitchenoqua,  a  section  of 
land  at  the  Flint.  This  was  within  one  or  two  years  after 
Marie  Lavoy  had  obtained  her  certificate;  and  it  shows  the  solic- 
itude Lyons  felt  for  his  daughter's  claim,  as  well  as  the  danger 
there  would  be  in  admitting  declarations  made  since  February 
7th,  182T. 

There  is  suflicient  evidence,  I  think,  that  the  Indian  name  of 
both  IS'ancy  Smith,  and  Elizabeth  Lyons,  was  Mokitchenoqua, 
at,  and  previous  to  the  making  of  the  treaty.  jS^either  of  them 
was  with  the  Indians  at  that  time,  nor  has  either  been  with  them 
since.  They  had  previously  been  taken  from  among  them, 
when  quite  y.  umg,  to  be  brought  up  with  the  whites.  These 
circumstances,  with  the  length  of  time  that  has  since  elapsed, 
sufficiently  account  for  the  evidence  not  being  more  full  and 
explicit  on  this  point.  Under  the  rules  stated,  much  of  the 
testimony  taken,  must  be  rejected;  and  that,  having  a 
direct  *bearing  on  the  question,  who  was  meant  by  Mo-  [*135] 
kitchenoqua,  in  the  treaty,  I  will  now  proceed  to  state. 

First.     On  the  part  of  the  complainants. 

Henry  Connor.,  was  interpreter  at  the  treaty.  Does  not 
know  that  any  reservation  was  made  at  the  treaty  for  Elizabeth 
Lyons,  but  has  heard  it  talked  of  since. 

Robert  A.  Forsyth,  was  present  at  the  treaty ;  was,  at  the  time, 
in  the  Indian  department;  knows  of  reservations  having  been 
made  at  the  treaty  for  certain  children  of  Indian  descent,  and 
of  a  number  of  sections  having  been  reserved  for  the  children 
(»f  Jacob  Smith.  Witness  was  private  secretary  to  Governor 
Cass,  who  was  the  commissioner  on  the  part  of  the  government. 

Jacob  Smith  handed  to  the  commissioner  the  names  of  cer- 
tain jiersons,  for  whom  reservations  were  to  be  made;  thinks 
tlie  name  of  Mo-kitch-e-wee-no-qua  was  on  the  list.  Saw  but 
two  lists  of  the  names;  Jacob  Smith  handed  in  one,  and  Henry 
Campau,  or  Louis  Beaufait,  the  other.    Witness  copied  the  draft 

135 


136  CASES  IX  CIIAXCERY. 

Stockton  V.  Williams. 

of  the  treaty ;  does  not  remember  having  seen  any  other  lists 
than  tlie  ones  mentioned;  does  not  know  the  number  of  names 
on  the  list  handed  in  by  Jacob  Smith;  does  not  recollect  Smith 
handed  in  more  than  one  list;  does  not  recollect  the  other 
names,  or  the  number  of  names  on  the  list. 

Louis  Beaufait,  acted  as  interpreter  for  the  Indian  depart- 
ment, at  the  treaty  of  Saginaw.  Witness  thinks  Jacob  Smith, 
a  few  months  after  the  treaty,  showed  him  a  list  of  names,  con- 
taining at  least  five  in  number;  among  them  was  the  name  of 
Mo-kitch-e-wee-no-qua;— said  he  had  got  a  section  of  land  for 
each ; — that  he  had  done  pretty  well  at  the  treaty,  or  words  to 
that  effect; — that  he  had  got  live  sections  of  land;  but  will  not 
be  positive  that  was  the  exact  number. 

Cecil  Boyer^  was  at  the  treaty;  was  told  by  Jacob 
[*136]  Smith,  *To-an-dag-e-nee,  Ivish-caw-ko,  and  by  all  the 

other  chiefs,  that  a  reservation  bad  been  made  for  Mo- 
kitch-e-wee-no-qua,  daughter  of  Jacob  Smith,  at  the  Grand 
Traverse  of  the  Flint  river; — was  told  so  while  at  the  treaty. 
Asked  the  chiefs  for  whom  reservations  had  been  made,  and 
thev  told  her  that  she  had  one,  and  Mo-kitch-e-wee-no-qua  had 
one,  and  a  number  of  others  had  received  one.  Jacob  Smith 
had  no  child  of  Indian  descent,  except  Mo-kitch-e-wee-no-qua, 
to  the  knowledge  of  witness.  Archibald  Lyons  had  a  child  of 
Indian  descent; — it  was  a  girl; — does  not  know  its  Indian  name, 
and  has  never  heard  it.  Heard  there  was  a  section  of  land  re- 
served for  Lyons'  daughter,  at  the  treaty,  at  Shiawassee.  She 
does  not  know  of  her  own  knowledge,  there  was  a  section  re- 
served for  Lyons'  daughter  at  the  treaty,  but  heard  afterwards 
there  was  one  granted  to  her  at  Shiawassee.  She  heard  it  from 
the  Indians. 

J/«<?(9^^s,  alias  Esh-ton-a-quot^  was  at  the  treaty;  knows  Ja- 
cob Smith  had  a  daughter  named  Mo-kitch-e-wee-no-qua,  by 
an  Indian  woman,  and  that  a  reservation  was  made  for  her  at 
the  treaty.  That  the  land  reserved  for  her  was  situate  at  the 
crossing  of  the  Flint  river,  and  it  was  reserved  there  for  no 
person  else  except  Mo-kitch-e-wee-no-qua.  Witness  was  at  the 
treaty  ground  among  the  first,  and  knows  said  reservation  was 

136 


FIEST  CIECUIT,  FEBRUAEY,  1843.  137 

Stockton  V.  Williams. 

made  for  Mo-kitch-e-wee-iio-qua,  and  for  no  one  else,  from  the 
fact  that  he  was  there.  The  last  time  he  saw  Mo-kitch-e-wee- 
no-qua,  was  at  the  treaty  of  Sao-inaw.  lie  knows  Archibald 
Lyons.-  Lyons  came  to  the  treaty  gnjund  two  days  after  the 
treaty  was  ended.  The  treaty  lasted  ten  days,  and  witness  was 
present  the  whole  time.  There  was  one  section  reserved  for 
Mo-kitch-e-wee-no-qna,  and  one  for  Mr.  Boy er,  which  were  all 
the  lands  reserved  by  the  treaty,  to  his  knowledge.  Mo- 
kitch-e-wee-no-qna  came  to  the  *treaty  with  her  uncle  pl37] 
Now-we-tuck-que-to.  Witness  never  saw  her  as  he  re- 
members before  the  treaty,  and  she  was  then  about  fifteen  years 
old.  Does  not  know  the  chiefs  put  in  any  claim  for  Lyons's 
daughter.  Smith,  at  the  treat}^,  claimed  a  section  of  land  for 
his  daughter  Mo-kitcli-e-wee-no-qua; — does  not  know  he  ever 
claimed  it  afterwards.  Does  not  know  Smith  cisiimed  more 
than  one  section  of  land  for  any  of  his  children.  Two  sections 
were  reserved  for  the  Rileys. 

Second.     Testimony  on  the  part  of  the  defendants. 

Rose  Camjyati.  Elizabeth  Lyons  was  brought  up  in  witness's 
family,  and  has  lived  with  witness  ever  since  she  was  a  year  old. 
Witness  heard  from  the  persons  who  attended  the  treaty  from 
Detroit,  on  their  return,  and  soon  aftei*,  that  a  reservation  had 
been  made  at  the  treaty  for  Elizabeth  Lyons.  Elizabeth's  In- 
dian uncles  and  other  relatives,  were  frequently  at  witness's 
house,  and  they  alwa^'s  called  Elizabeth,  Mokitchenoqua.  Wit- 
ness never  heard  the  Indians  claim  any  land  before  the  Saginaw 
treaty,  for  Mokitchenoqua,  or  Elizabeth,  but  soon  after  the 
treaty,  heard  them  say,  that  she,  Mokitchencxpia,  had  land  allot- 
ted to  her  at  the  treaty.  It  was  a  matter  of  general  notoriety 
that  a  section  of  land  had  been  reserved  for  Elizabeth  Lyons, 
at  the  treaty. 

Josette  Knaggs.  After  the  ti-eaty  of  Saginaw,  witness  un- 
derstood from  the  Indians,  relative ,  of  Elizabeth  Lyons,  that 
lands  had  been  given  to  her  at  the  treaty.  This  was  a  short 
time  after  the  treaty; — about  three  or  four  months.  Heard  it 
also  from  Indians  of  her  (Elizabeth's)  tribe;  heard  Peter  and 
James  Eiley  say  so.     It  was  generally  reported  by  those  that 

137 


138  CASES  m  CHANCEEY. 

Stockton  V.  Williams. 

knew  Elizabeth  Lyons, — both  among  the  whites  and  Indians, — 
that  she  had  received  a  section  of  land  at  the  treaty.  AV^itness's 
husband,  Whitmore  Knaggs,  on  his  return  from  the 
[*138]  treaty,  told  her  a  section  *of  land  had  been  given  to 
Elizabeth  Lyons.  "Whitmore  Knaggs  was  Indian  agent 
and  interpreter  at  the  treaty;  he  is  now  dead. 

Joseph  JB.  Carnpau,  was  not  at  the  treaty.  Elizabeth  Ly- 
ons was  brought  up  in  his  family.  It  was  currently  reported 
soon  after  the  treaty,  by  those  who  were  there,  and  others,  that 
his  little  girl,  as  Elizabeth  Lyons  was  then  called,  had  had  a 
section  of  land  given  to  her  at  the  treaty.  Archibald  Lyons, 
soon  after  the  treaty,  told  witness  so. 

Rufus  Stevens.  Jacob  Smith  told  witness  section  eight  was 
reserved  for  Archibald  Lyons's  daughter.  Has  no  recollection 
Smith  said  anything  about  a  reservation  for  an  Indian  daughter 
of  liis,  but  he  went  on  to  state  that  section  seven  was  reserved 
for  Edward  Campau,  section  eight  for  Archibald  Lyons's  daugh- 
ter, and  others  for  his  (Smith's)  children,  and  that  they  made 
no  claim  on  the  south  side  of  the  river;  that  his  lands  were  on 
the  north  side  of  the  river 

Louis  Moran.  Smith,  when  inquired  of  by  witness,  who 
owned  certain  land  at  the  Flint,  said  that  it  was  a  section  of 
land  that  had  been  given  to  Archibald  Lyons's  daughter  by  the 
Indian  treaty. 

Antoine  Cmnj^au^  was  at  the  treaty.  Archibald  Lyons's 
daughter  had  a  section  of  land  reserved  to  her  at  the  treaty,  as 
witness  heard,  either  at  the  time  of  the  treaty,  or  immediately 
after. 

Louis  Campau,  was  present  at  the  treaty.  Resided  at  Sag- 
inaw at  the  time; — was  told  at  the  time  of  the  treaty  by  Eliza- 
beth Lyons's  grandfather,  Ke-che-man-e-to,  her  father,  and  Cap- 
tain Knaggs,  the  Indian  agent,  that  her  name  was  Mokitcheno- 
(jua.  The  cause  of  her  being  named  Mokitchenoqua,  as  stated 
1)3'  Captain  Knaggs,  her  father,  and  the  chiefs,  was,  that  they 
had  gone  to  Governor  Cass,  and  demanded  that  she 
[*1 39]  should  have  a  section  of  *land,  and  there  was  a  section 
granted  to  her;  but  witness  was  not  told  where  it  was  at 
138 


FIEST  CIECUIT,  FEBRUARY,  1843.  Ui) 

Stockton  r.  Williams, 

that  time.  Jacob  Smith  told  witness,  Lyons's  daugliter  luid  a 
section  of  land  reserved  for  her  at  Shiawassee,  near  the  big 
rock; — that  Lyons  had  made  application  tor  a  section  of  land 
for  his  daughter,  under  the  name  of  Mokitchenoqua,  and  that 
he  had  stolen  his  (Smith's)  daughter's  name. 

John  Bajpt.  Cochies  was  at  the  Saginaw  treaty.  To  the 
<|uestion,  "  How  did  you  know  that  Betsy,  (Elizabeth,)  Lyons 
had  a  reservation  made  at  tliat  treaty  ?"  He  says,  he  "  heard 
licr  father,  the  chiefs,  the  interpreters,  and  a  great  many  others 
present,  say  she  had  a  section  of  land  reserved  at  the  Flint,  at 
the  time  of  the  treaty." 

John  Bapt.  Trudell^  was  present  at  the  treaty.  Lyon's 
(laughter  had  land  given  to  her  at  the  treaty.  All  of  the  Indian 
chiefs  told  witness  she  had  land  given  to  lier; — they  told  witness 
so  at  the  time  of  the  treaty.  Smith,  while  he  resided  at  the 
Flint,  told  witness  Lyons's  daughter  had  a  section  of  land  on  the 
opposite  side  of  the  river; — he  spoke  of  it  a  number  of  times, 
and  but  a  short  time  before  his  death 

As-sin-o -Tea-man,  was  at  the  treaty.  There  was  a  section  of 
land  reserved  for  "Wa-she-ba-ga's  daughter,  Mokitchenoqua. 
Wa-she-ba-ga  applied  to  the  chiefs  for  it,  and  they  asked  to 
have  it  reserved.  He  heard  from  the  chiefs  and  others  present, 
that  it  was  located  at  the  Grand  Traverse,  Wa-she-ba-ffa  was 
the  Indian  name  of  Archibald  Lyons, 

Peter  Whitmore  Knaggs  was  at  the  treaty; — was  present 
when  the  Indians,  in  council,  agreed  to  reserve  a  section  of 
land  for  the  daughter  of  Archibald  Lyons,  at  the  request  of 
Lyons. 

The  evidence  decidedly  preponderates  in  favor  of  the  defend- 
ants. The  most  important  witnesses  on  the  part  of 
*the  complainants,  are  Cecil  Boyer,  and  Macons,  alias  [*1-10] 
Esh-ton-a-quot.  The  testimony  of  Macons  I  do  not 
think  entitled  to  much  weight,  when  opposed  by  the  evidence 
on  the  defense.  He  has  evidently  committed  a  number  of 
gross  blunders;  and,  although  present  at  the  treaty,  he  does  not 
appear  to  liave  taken  any  part  in  it.  He  did  not  know  Smith 
claimed  more  than  one  section  of  land,  for  any  of  his  children, 

139 


141  CASES  IN  CHANCERY. 

Stockton  V.  Williams. 

or  that  more  than  four  sections  in  all,  were  reserved  at  the 
treaty;  one,  as  he  sa3"s,  for  Smith's  daughter,  one  for  Mr.  Boyer, 
and  two  for  the  Kileys.  He  says  Smith's  daughter  was  at 
the  treaty;  that  she  came  there  with  her  uncle,  Now-we-tuck- 
que-to,  M'hen  in  fact,  she  was  at  the  time  in  the  State  of  Penn- 
sylvania. He  never  saw  lier  before,  and  has  not  seen  her  since, 
and  says  she  was  then  about  fifteen  years  old.  She  was  in  her 
tenth  year  only.  He  also  says  that  Archibald  Lyons  was  not  at 
the  treaty,  and  that  he  did  not  come  to  the  treaty  ground  until 
two  days  after  the  treaty  was  over;  while  the  evidence  is  conclu- 
sive that  Lyons  was  at  the  treaty. 

Cecil  Boyer's  testimony  is  deserving  of  more  consideration. 
She  was  at  the  treaty,  and  was,  as  she  says,  told  by  Jacob 
Smith,  To-an-dag-e-nee,  Kish-caw-ko,  and  by  all  the  other 
chiefs,  that  a  reservation  had  been  made  for  Mokitchenoqua, 
datighter  of  Jacob  Smith.  She  asked  the  chiefs  for  whom 
reservations  had  been  made,  and  they  told  her  she  had  one, 
and  Mokitchenoqua  had  one,  and  a  number  of  others  had 
received  one.  She  at  the  time  knew  Smith  had  a  daughter 
called  Mokitchenoqua.  She  also  knew  Lyons  had  a  daugh- 
ter, but  did  not  know  her  name.  Now,  it  is  possible  the 
witness  may  be  mistaken  in  saying  the  chiefs  told  her  a 
reservation  had  been  made  for  Mokitchenoqua,  daugTiter  of 
Jacol)  Smith.  These  last  words  may  have  been  suggested  by  her 

own  mind,  and  not  used  l)y  the  chiefs.  She  says  she  asked 
[■''l-ll]  the  chiefs,  and  ^thej^  told  her  she  had  one,  and  Mokitche- 

noque  had  one,  and  a  number  of  others  had  one;  and  know- 
ing that  Smith  had  a  daughter  named  Mokitchenoque,  and  not 
knowing  any  other  person  by  that  name,  it  was  natural  for  the 
witness  to  suppose  it  was  Smith's  daughter  that  was  meant.  She 
could  have  drawn  no  other  conclusion  from  the  knowledge  she 
previously  possessed,  and  the  information  communicated.  But 
she  also  heard  there  was  a  section  reserved  for  Lyon's  daughter 
at  Shiawassee.  -Was  not  the  same  person  and  the  same  reserva- 
tion referred  to  in  both  cases?  I  am  inclined  to  that  opinion. 
Smith  told  Louis  Campaii,  Lyons  had  made  application  for  a 
section  of  land  for  his  daughter,  by  the  name  of  Mokitcheno- 

140 


FIRST  CIECUIT,  FEBRUAEY,  1843.  142 

Stockton  V.  Williams. 

qua;  and  that  lie  had  stolen  his,  (Smith's,)  daughter's  name. 
He  also  said  a  reservation  was  made  for  her  at  Shiawassee. 
There  were  many  reservations  made  by  the  treaty,  to  different 
persons,  and  at  different  places.  The  question  of  location  was 
one  of  minor  importance  to  the  reservation  itself,  and  it  is  not, 
therefore,  at  all  surprising  that  there  should  have  been  different 
I'umors  as  to  the  location,  when  there  were  none  as  to  the  re- 
servees.  The  repeated  declaration  of  Smith,  after  the  treaty, 
that  there  was  a  section  reserved  at  the  Flint  for  Lyons's 
daughter,  is  almost  conclusive  of  itself.  He  claimed  five  sec- 
tions at  that  place,  under  the  treaty,  for  himself,  or  children, 
and  took  possession  of  them;  but  he  never  claimed  section 
eight.  No  one,  perhaps,  was  more  anxious  to  secure  a  per- 
sonal advantage  by  the  treaty,  or  knew  better  for  whom 
reservations  were  made,  than  Smith  himself. 

"While  the  bill,  therefore,  must  be  dismissed  as  to  Williams 
and  Pritchette,  it  is  necessary  to  inquire  what  disposition  must 
be  made  of  it,  as  to  the  other  defendants,  against  whom  it  has 
been  taken  as  confessed.     I  think  it  should  be  dismissed 
as  to  them  also.     The  complainants  *have  failed  to  show  [*142] 
either   legal  or  equitable  title  in  themselves,  which  is 
necessary  to  entitle  them  to  the  relief  they  ask.     The  language 
of  the  act  is,  "any  person  having  the  possession  and  legal  or 
equitable  title  to  the  lands."     The  object  is  not  to  fortity  a  bad 
title,  or  no  title  at   all,   by  adjudications    and    releases,  but 
to  remove  a  cloud  hanging  over  a  good  title,  and  casting  a 
shade  upon  it.     The  defense  made  by  Williams  and  Pritch- 
ette, enures  to  the  other  defendants.     Clason  v.  3Iorris^   10, 
J.  R.  524. 

The  bill  must  be  dismissed  as  to  all  the  defendants,  with 
costs  to  Williams  and  Pritchette,  but  without  costs  to  the  other 
defendants. 


141 


us  CASES  i:n  chancery 


Wharton  v.  Fitch. 


[*143]  ^Wharton  v.  Fitch  et  al. 

Where  plaintiff's  attorney  instructed  the  sheriff  not  to  levy  on  real  estate,  and, 
on  the  return  of  the  execution  unsatisfied,  filed  a  judgment  creditor's  bill, 
and  obtained  an  injunction,  the  injunction  was  dissolved  on  a  plea  of  the 
defendant  stating  the  instructions  given  to  the  officer,  and  that  defendant 
offered  to  turn  out  real  estate  to  be  levied  on,  when  called  on  by  the  officer 
"^vith  the  execution. 

Motion  to  dissolve  an  injunction  which  had  been  allowed  on 
a  judgment  creditor's  bill. 

The  motion  was  founded  on  a  plea  of  the  defendant,  Fitch, 
on  whose  behalf  it  was  made.  The  plea  stated,  among  other 
things,  that  defendant  was  informed  by  the  officer  having  the 
execution,  and  believed,  that  the  plaintiff's  attorney,  at  the  time 
he  delivered  the  execution  to  the  officer,  instructed  him  not  to 
levy  on  real  estate.  That,  when  the  officer  called  on  defendant 
with  the  execution,  defendant  informed  him  he  was  seized  in 
his  own  right,  and  in  fee  simple,  of  real  estate  within  the  baili- 
wick of  the  officer,  subject  to  levy  and  sale,  in  value  far  exceed- 
ing the  amount  of  the  execution;  and  that  he  was  willing  it 
should  be  levied  on,  and  offered  to  show  it  to  the  officer,  and 
give  him  a  description  of  it.  That  the  officer  declined  to  levy 
on  it,  and  gave  as  a  reason  the  aforesaid  instructions  given  to 
him  by  the  plaintiff's  attorney.  That  defendant  was,  in  fact,  at 
that  time,  the  owner  in  fee  aimple  of  certain  real  estate,  which 
he  then  described,  stating  the  value  of  each  particular  piece  or 
parcel,  and  whether  it  was  incumbered  or  not,  and  the  amount 
of  the  incumbrance.  The  plea  also  stated  that  defendant  was 
still  the  owner  in  fee  simple  of  all  the  said  real  estate,  except 
one  piece,  (describing  it,)  which  he  had  sold;   and  that  such 

real  estate  was  worth  more  than  ten  times  the  amount  of 
[■^144]  *the  execution.     The  plea  was  verified  in  the  usual  form 

by  the  defendant,  and  also  by  the  officer,  so  far  as  it  related 

142 


SECOND  CmCUIT,  MARCH,  1843.  144 

Hart  V.  Linsday. 

to  his  acts  and  the  instructions  given  to  him  by  the  complain- 
ant's attorney. 

T.  Romeyn,  in  support  of  the  motion. 

G.  Miles,  contra. 

The  Chancellor  dissolved  the  injunctioii. 


Silas  S.  Hart  v.  Elijah  Linsday. 

A  writ  of  assistance  "will  be  granted  to  put  the  purchaser  of  mortgaged  prem- 
ises in  possession,  if  the  defendant,  on  being  shown  the  Master's  deed,  and 
a  certified  copy  of  the  order  confirming  the  sale,  under  the  seal  of  the  Court, 
refuse  to  deliver  possession.^ 

Mr.  Backus  moved  for  a  writ  of  assistance  to  put  the  com- 
plainant in  possession  of  mortgaged  premises  which  had  been 
purchased  by  him  at  the  Master's  sale.  The  motion  was  founded 
on  an  afhdavit  of  David  Hart,  stating  that,  on  the  twenty-fourth 
day  of  March,  he  went  to  the  residence  of  the  defendant,  on 
the  mortgaged  premises,  and  exhibited  to  him  the  Master'.s 
deed,  and  a  certified  copy  of  the  order  confirming  the  Master's 
report  of  sale,  under  the  seal  of  the  Court,  and,  as  complain- 
ant's agent,  demanded  possession ;  which  defendant  refused  to 
give. 

The  Chancellor  granted  the  motion. 
'See  Benhard  r.  Darrow,  post,  519  and  note. 


143 


145  CASES  IN  CHANCERY 


Dorr,  petitioner,  &c. 


[*145]  *In  the  Matter  of  the  Petition  of  Josiah  R. 
DoRE,  Guardian  of  George  J.  I.oer,  a  Minor. 

A  petition  under  the  '  'Act  to  authorize  the  conveyance  of  real  estate  of  minors 
in  certain  cases,"  approved  February  28th,  1840,  should  set  forth  fully  all 
the  facts  and  circumstances  rendering  a  sale,  or  other  disposition  of  the 
minor's  property,  necessaiy;  that  the  Court  may  judge  of  the  necessity 
and  fitness  of  the  measui'e.' 

A  guardian  should  not  make  an  absolute  sale  of  the  real  estate  of  his  ward, 
and  then  apply  to  the  Court  to  authorize  him  to  do  what  he  has  already 
bound  himself  to  do;  and  the  Court  will  not  ratify  such  agreements.  The 
proper  course  is  to  obtain  leave  of  the  Court  in  the  first  instance. 

Petition  under  the  act  entitled  "  An  act  to  authorize  the 
conv^eyance  of  real  estate  of  minors  in  certain  cases,"  approved 
February  28tli,  1840. 

The  petition  stated  that  Melvin  Dorr  died  in  1838,  leaving 
a  widow,  Marion  Dorr,  and  two  children,  Mary  L.  Dorr,  by 
the  said  Marion,  and  George  J.  Dorr,  by  a  former  wife,  ward 
of  the  petitioner;  and  that,  afterwards,  the  said  Mary  L.  Dorr 
departed  this  life.  That,  after  the  decease  of  the  said  Mary 
L.,  the  widow  married  Samuel  B.  Scott,  and  set  up  a  claim  to 
a  distributive  share  in  the  supposed  estate  of  the  said  Mary 
L.,  and  also  her  claim  to  dower  in  the  estate  of  Melvin  Dorr, 
she  having  rejected  the  provision  made  for  her  by  the  will  of 
the  said  Melvin  Dorr.  Tliat,  after  consulting  and  advising 
with  the  executor,  and  with  counsel,  as  to  the  course  to  be 
pursued  to  protect  the  rights  and  interest  of  his  ward,  peti- 
tioner, September  8th,  1840,  entered  into  an  agreement  with 
the  said  Samuel  B.  Scott,  and  Marion  his  wife,  that  the  said 
George  J.  Dorr  should,  on  coming  of  age  or  when  authorized 
by  a  special  act  of  the  legislature,  convey  to  said  Marion  cer- 
tain real  estate  described  in  the  agreement;  a  copy  of 
[*146]  *which  was  annexed  to  the  petition,  and  made  a  part  of 
it.     And  that,  in  consideration  thereof,  the  said  Samuel 

1  See  Nichols  v.  Lee,  10  Mich.  526;  Ryder  v.  Flanders,  30  id.,  336. 
144 


FIRST  CIRCUIT,  APRIL,  1843.  14^ 


Dorr,  petitioner,  &c. 


B.  and  Marion,  had  released  all  lier  right  of  dower  in  the 
estate  of  said  Melvin  Dorr,  and  all  claim  upon  any  supposed 
estate  of  the  said  Mary  L.  The  petition  further  stated  that 
the  said  Georf^e  J,  Dorr  was  of  the  age  of  eighteen  years;  and 
that  the  said  Samuel  B.  and  Marion  were  anxious  to  obtain 
a  legal  title  to  the  land  agreed  to  be  conveyed  to  them  by 
])etitioner,  and  that  the  arrangement  was  a  favoral)le  one  for 
the  ward,  and  would,  when  completed,  release  the  estate  from 
embarrassment. 

There  was  attached  to  the  petition  a  copy  of  an  indenture, 
bearing  date  September  8th,  1840,  between  the  guardian  of 
the  one  part,  and  the  said  Samuel  B.  and  Marion  of  the  other, 
l)y  which  the  guardian  granted,  bargained,  and  sold,  some  six 
hundred  acres  of  land  to  the  said  Marion,  and  covenanted  that 
his  ward  should  convey,  as  stated  in  the  petition;  and  the 
said  Samuel  B.  and  Marion,  in  consideration  thereof,  granted, 
bargained,  and  conveyed  to  the  ward,  all  the  right,  title,  interest, 
dower,  claim  and  demand  of  the  said  Marion,  in  and  to  the 
estate,  real  and  personal,  of  the  said  Melvin  Dorr,  deceased, 
either  in  her  own  right  of  dower,  or  as  heir,  and  in  right,  of 
her  late  child,  JNIary  L.  Dorr,  deceased,  one  of  the  heirs  at  law 
of  the  said  Melvin  Dorr,  deceased. 

Joy  (&  Porter,  for  petitioner. 

TuE  Chancellor.  The  second  section  of  the  act,  under 
which  the  petition  is  presented,  is  in  these  words:  "When- 
ever it  shall  appear  satisfactory  to  the  Court  of  Chan- 
cery, that  a  disposition  of  any  part  of  the  real  estate  of  an 
infant,  or  of  his  interest  in  any  term  for  3^ears,  is  necessary 
and  proper,  either  for  the  support  and  maintenance 
of  such  intant,  or  for  his  education,  or  that  the  in- 
terest* of  said  infant  requires,  or  will  be  substantially  ['"147] 
promoted  by  such  disposition,  on  account  of  any  part  of 
his  said  property  being  exposed  to  waste  or  dilapidation,  or  on 
account  of  its  being  M'holly  unproductive,  or  for  any  other 
peculiar  reasons  or  circumstances,  the  Court  may  order  the 
YoL.  I.— 10  145 


148  CASES  lis"  CHAXCEEY. 

Dorr,  petitioner,  &c. 

letting  for  a  term  of  years,  or  decree  the  sale,  convej^ance,  or 
other  disposition  of  such  real  estate  or  interest,  to  be  made  by 
the  infant,  or  the  guardian  or  guardians  apj)ointed  by  said  Court 
for  such  infant,  in  such  manner,  and  with  such  restrictions  as 
shall  be  deemed  expedient."     Laws  1840,  p.  26. 

The  language  of  the  statute  is  very  broad^  jjarticularly  that 
part  of  it  which  says,  "or  for  any  other  peculiar  reasons  or 
circumstances."  It  is  none  too  broad,  however,  so  long  as  the 
power  of  the  Court  is  used  with  proper  discretion.  Other  cases 
than  those  particularly  named  might  occur,  in  which  it  would, 
clearly,  be  for  the  interest  of  the  minor  to  part  with  a  portion 
of  his  estate.  Where  his  title  is  doubtful,  a  compromise  might, 
under  certain  circumstances,  be  more  for  his  interest  than  t<> 
run  the  hazard  of  litigation,  with  the  expense  attending  it. 
Something  of  this  kind  seems  to  have  been  the  object  of  the 
petitioner,  in  making  the  agreement  with  Mr.  and  Mrs.  Scott. 
But,  before  the  Court  will  authorize  a  sale,  or  other  disposition, 
to  be  made  of  a  minor's  estate,  it  must  be  satisfied,  from  the 
facts  before  it,  of  the  necessity  and  propriety  of  the  measure. 
It  must  see  that  the  interest  of  the  minor  requires  it;  and  all 
the  facts  and  circumstances,  rendering  it  necessary,  should  be 
fully  stated  in  the  petition.  In  this  the  petition  is  clearly  de- 
fective. It  does  not  show  of  what  estate  Melvin  Dorr  died 
seized,  or  what  dis^^osition  was  made  of  it  by  his  will,  or  what  in- 
terest his  infant  daughter  took  under  the  will,      Xor  does  it  state 

on  what  grounds  the  widow,  after  the  death  of  her  daugh- 
[*148]  ter,  Mary  L.  Dorr,  ^claimed  her  portion  under  the  M-ill. 

The  Court  cannot  judge  of  the  benefits  that  would  be 
likely  to  result  to  the  minor  from  the  agreement,  or  the  neces- 
sity there  was  for  making  it,  until  it  is  put  in  possession  of 
these  facts. 

There  is  another  objection  to  granting  the  prayer  of  the  pe- 
titioner. It  is  this:  He,  in  effect,  asks  the  Court  to  ratify  an 
agreement  entered  into  by  him  two  years  and  a  half  ago.  He 
does  not  ask  for  an  order  authorizing  him  to  sell  his  ward's 
estate,  or  to  transfer  a  part  of  it  to  perfect  an  undisputed  title 
to  the  balance;  but  that  the  Court  will  enable  him  to  perform 

146 


FOURTH  CmClTIT,  MAY,  1843.  149 

Chamberlin  r.  Darragh. 

his  ag-reemcnt  with  Mr.  and  Mrs.  Scott,  made  in  September, 
1840.  lie  should  have  souglit  tlie  aid  of  tlie  Court  before  lie 
concluded  the  agreement.  The  precedent  would  be  a  bad  one. 
Should  it  be  once  established,  it  is  to  be  feared  that  guardians 
might  be  induced  by  it  to  make  improvident  sales  of  the  real 
estate  of  their  wards,  with  the  expectation  that  their  acts  would 
be  confirmed  by  this  Court.  Besides,  a  guardian  thus  situated 
would  not  stand  in  the  most  favorable  position  to  represent  the 
interest  of  the  minor;  he  might  be  prompted  more  by  his  own 
interest,  than  a  desire  to  benefit  his  ward. 
Prayer  of  petition  denied. 


•'Olmsted  Chamberlix  v.  Daniel  Darragh,     [*149] 
Cornelius  Darragh  et  al. 

Equity  will  not  decree  the  specific  execution  of  a  written  contract  for  the  sale 
of  land  made  by  a  special  agent,  who  has  exceeded  his  authority.' 

Neither  wiU  it  require  the  agent  to  convey  his  equitable  interest  in  the  land  as 
cestui  que  trust,  he  having  acted  only  as  the  agent  of  the  trustee  in  selling 
the  land,  although  the  contract  on  its  face,  does  not  disclose  the  agency; 
the  bin  charging  that  the  contract  was  made  by  him  as  the  agent  of  the 
trustee,  and  not  that  it  was  made  by  him  in  his  own  right. 

Bill  for  the  specific  performance  of  a  contract  for  the  sale 
of  land.  The  facts  of  the  case  appear  in  the  opinion  of  the 
Court. 

M.  L.  Drake ^  C.  Draper  and  Wm.  P.  Draper,  for  com- 
plainant. 

0.  D.  RlcKardsori  and  J.  B.  Hunt,  for  defendants. 

^  Absence  of  proof  of  written  authority  to  an  agent  to  execute  a  land  contract 
is  unimportant  where  the  contract  has  been  fully  ratified  by  both  parties  by  de- 
mand and  receipt  of  payment,  and  by  possession  and  improvement.  Hanchett 
V.  McQueen,  32  Micb.,  22. 

147 


150  CASES  IInT  chancery. 

Chamberlin  v.  Darragli. 

The  Chancellor.  The  bill  in  this  case  is  filed  for  the 
specific  perfoi'mance  of  a  contract  entered  into  between  the 
complainant  and  Daniel  Darragh,  one  of  the  defendants,  Octo- 
ber 26th,  1838.     The  contract  is  in  these  words: 

"Whereas,  I,  Daniel  Darragh,  have  this  day  sold  to 
O.  Chamberlin,  the  following  described  lands  in  the  village  of 
Pontiac,  viz:  Out-lots  numbered  16,  17  and  20,  in  the  south- 
east quarter  of  section  32,  and  out-lots  numbered  11  and  13, 
o]i  the  southwest  quarter  of  section  28,  township  3  north,  of 
range  10,  east,  being  lands  bought  by  the  late  Archibald 
Darragh,  of  the  Pontiac  company,  for  the  sum  of  nine  hundred 
dollars,  to  be  paid  as  follows:  two  linndred  dollars  down,  or 

when  the  deed  is  delivered,  the  balance  in  three  equal 
r*150]  annual  installments,  with  interest,  to  "^be  secured  by  a 

mortgage  on  the  same,  by  said  Chamberlin;  and  I,  the 
said  Chamberlin,  do  bind  myself  to  comply  with,  and  fulfill  the 
above  coatract.     Dated,  Pontiac,  26th  October,  1838." 
(Signed,)  "  D.  Dakragh, 

"  Olmsted  Chamberlin." 

The  bill  states  that  the  several  lots  named  in  the  contract 
were  conveyed  by  the  Pontiac  company,  in  1832,  to  Archibald 
Darragh,  who  died  seized  in  1836,  leaving  a  last  will  and  testa- 
ment, and  Cornelius  Darragh  sole  executor  thereof,  with 
authority  to  sell  and  dispose  of  the  real  estate,  and  divide  the 
proceeds,  after  paying  the  debts,  of  the  testator,  between  Daniel 
Darragh  and  Margaret  Baird;  one-half  to  Daniel  Darragh,  his 
hei'rs  and  assigns,  and  the  other  half  to  Margaret  Baird,  for,  and 
during  her  natural  life,  and,  after  her  death,  to  Daniel  Darragh, 
his  heirs  and  assigns.  And,  that  Daniel  Darragh  made  the 
aforesaid  contract  with  complainant,  by  virtue  of  a  power  of 
attorney,  from  the  executor  and  Mrs.  Baird,  to  sell  the  land. 
Daniel  Dari'agh,  by  his  answer,  admits  the  making  of  the  con- 
tract, but  denies  he  had  any  authority  from  the  executor  and 
Mrs.  Baird  to  sell  the  land.  He  admits  he  was  authorized  by 
the  executor  to  make  a  contract  for  the  sale  of  the  land,  subject 
to  his  approval,  and  says  he  so  informed  complainant  at  the 
148 


FOURTH  CIRCUIT,  MAY,  1843.  151 

Chamberlin  v.  Darragb. 

time  the  contract  was  made.  Cornelius  Darrai^li,  the  executor, 
admits  he  autliorized  Daniel  Darragh,  to  bargain  for  a  sale  of 
the  land,  but  says  that  the  written  power  he  gave  him,  i-eserved 
to  himself  the  right  to  confirm  or  reject  the  sale,  as  he  should 
think  best;  and  that,  on  being  informed  of  the  contract  made 
with  complainant,  he  refused  to  ratify  it. 

The  ix)wer  under  which  Daniel  Darragh  acted,  is  not  pro- 
duced.    The  executor  states  that  it  is  either  lost  or  mis- 
laid.*    Daniel  Darragh  says  it  was  destroyed  on  his  [*151] 
turn  to  Pittsburgh,  where  the  executor  lives.     The  writ- 
ten agreement  does  not  refer  to  it,  nor  is  the  agreement  signed 
by  Daniel  as  agent  or  attorney  for  the  executor.     The  bill,  how- 
ever, shows  that  the  complainant  treated  with  him  throughout, 
as  the  airent  of  the  executor;  and  the  contract  must  be  viewed 
in  that  light,  and  the  same  as  if  it  referred  to  the  written  power, 
and  were  signed  by  Daniel  Darragh  as  the  agent  or  attorney 
of  the  executor.     This  makes  it  necessary  to  inquire  into  the 
extent  of  the  agent's  authority.     Kow,  both  Cornelius  and  Dan- 
iel Darragh  state  in  positive  terms,  that  it  authorized  the  latter 
to  make  a  conditional  sale  only,  subject  to  the  approval  of  the 
executor,   and  not  an  absolute   sale.     Their  answers  on  this 
point,  are  responsive  to  the  bill,  and  there  is  no  evidence  dis- 
proving them.     The  Court  must,  therefore,  take  it  for  granted 
such  was  the  nature  of  the  power  under  which  the  contract  was 
made,  and,  that  being  the  case,  the  complainant  is  not  entitled 
to  a  decree  for  a  specific  performance,  the  executor  never  hav- 
ing  given  his  assent  to  the  contract.     Daniel  Darragh  was  a 
special  agent,  and  nothing  more.     He  was  only  authorized  to 
make  a  contract  for  the  sale  of  the  land,  subject  to  the  approval 
of  his  principal;  and  no  rule  of  law  is  better  settled  than  that 
a  particular  or  special  agent  cannot  bind  his  principal  when  he 
exceeds  his  authority.     Aticood  v.  Munmng^  7  Barn.  &  Cres., 
278;  Fenn  v.  Harrison,  3  T.  R.,  757;  1  Pet.  R.,  264.     Every 
contract  for  the  sale  of  laud  is  void,  unless  reduced  to  wi'itino-, 
and  signed  by  the  party,  or  some  person  by  him  duly  anthor- 
hed  in  writing.     R.  S.,  329,  §  8.     x\.  person  purchasing  real 
estate  of  an  agent,  should  call  on  him  for  his  written  authority 

149 


152  CASES  m  CHANCEliY. 

Sawyer  v.  Studley. 

to  sell.  This  was  unnecessary  in  the  present  case,  for  it 
[*152]  appears  from  the  testimony  that  the  "^authority  was  pro- 
duced when  the  contract  was  signed,  but  that  complain- 
ant did  not  look  into  it  or  examine  it.     ■ 

It  is  said  that,  if  the  executor  is  not  bound  by  the  contract, 
still  Daniel  Darragh  should  be  required  to  convey  his  equitable 
interest  in  the  premises  under  the  will  of  Archibald  Darragh. 
I  cannot  think  so.  The  contract  was  for  the  purchase  of  the 
legal  estate,  or  land  itself,  of  the  executor,  and  not  the  interest 
of  Daniel  Darragh,  as  cestui  que  trust,  under  the  wiW.  It  would 
be  making  a  new  contract  for  the  parties,  instead  of  decreeing 
the  execution  of  one  made  by  themselves.  There  is  no  analogy 
between  this  case,  and  that  class  of  cases  where  the  comj^lain- 
ant  may,  if  he  choose,  have  a  conveyance  of  such  part  of  the 
premises  as  the  defendant  can  make  a  good  title  to,  his  title 
failing  as  to  a  part. 

Bill  dismissed  with  costs. 


[*153]  *Sawyek  et  al  v.  Studley  et  al 

rt  is  the  termination  of  the  suit  which  entitles  one  party  to  costs  against  the 
other,  and  the  law  then  in  existence,  is  the  rule  by  which  they  are  to  be 
ascertained.    A  different  rule  prevails  between  attorney  and  client.' 

A.ffidavits  are  required  in  certain  cases,  before  taxation  of  costs. 

Petition  for  re-taxation  of  costs. 

£.  S.  Lee,  for  the  petition. 

H.  II.  E'mmons,  contra. 

The  Chancellor.  This  case  was  decided  in  January  last, 
and  by  the  decree  of  the  Court,  costs  were  adjudged  to  the  de- 
fendants.    The  solicitor's  services  were  rendered  in  part,  after 

1  See  Comp.  Laws,  1871,  §§  7385,  7386. 
150 


FIRST  CIRCUIT,  MAY,  1843.  154 

Sawyer  v.  Stuclley. 

the  law  of  1S40,  regulating  fees,  was  passed,  Laws  1840,  p.  175, 
and  before  the  repeal  of  that  part  of  the  revised  statutes  relating 
to  the  same  subject,  in  1841.  Laws  1841,  p.  10.  Tliese  ser- 
vices were  charged  in  the  bill  of  costs,  and  allowed  on  taxation, 
at  the  rates  lixed  for  such  services  by  the  revised  statutes.  In 
this  the  taxing  master  erred.  It  is  the  termination  of  the  suit 
that  entitles  one  party  to  recover  costs  against  the  other,  and, 
consequently,  the  law  then  in  existence,  is  the  rule  by  which 
they  are  to  be  ascertained.  The  People  v.  Ilerkimer  Common 
/Vms,  4  Wend.  R.,  210;  Smith  v.  Caatlers,  5  Wend.  R.,81; 
Dean  v.  Gridley,  11  AVend.  R.  167.  A  different  rule  prevails 
between  attorney  and  client. 

By  the  laws  of  1840,  solicitors  are  entitled  to  $20  in  all  cases, 
on  final  hearing,  and  in  all  cases  of  hearing,  other  than  on 
final  hearing,  to  $10;  but  once,  howev^er,  in  each  case. 
Every  he:iring  l)y  which  a  cause  is  iinally  disposed  *of,  pl54J 
is  a  final  hearing;  and  the  solicitor  is  entitled  to  $20, 
and  no  more,  unless  there  has  been  a  previous  hearing  upon  a 
(k'Hiurrer,  or  plea,  or  pleadings  and  ])roofs  without  a  final  dis- 
])osition  of  the  cause;  in  which  case  he  is  entitled  to  $10  for 
such  hearing,  in  addition  to  the  $20. 

The  revised  statutes,  p.  549,  §  35,  provide,  where  there  are 
charges  in  a  bill  of  costs  for  the  attendance  of  any  witnesses,  or 
for  copies  or  exemplifications  of  documents  or  papers,  or  for 
any  other  disbursements,  except  to  officers  for  services  ren- 
dered, that  such  charges  for  witnesses  shall  not  be  taxed,  with- 
out an  afhdavit  stating  the  distance  they  respectively  traveled, 
and  the  days  they  actually  attended;  and  such  charges  for 
copies  shall  not  be  taxed,  without  an  affidavit  that  such  copies 
\vere  actually  and  necessarily  used,  or  were  necessarily  obtained 
for  use;  nor  shall  such  disbursements  be  allowed  without  an 
affidavit  specifying  the  items  thereof  particularly,  nor  unless 
they  a]ipear  to  have  been  necessary,  and  reasonable  in  amount. 
This  chapter  of  the  revised  statutes  is  still  in  force,  and  nut 
repealed  by  the  act  of  1841. 

Let  an  order  be  entered  for  a  re-taxation  of  the  bill  of  costs, 
by  the  taxing  master,  on  the  principles  above  stated. 

151 


155  CASES  IN  CHANCERY. 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 


ploo]  ===The  La  Plaisance  Bay  Haebor  Company  v. 
The  Council  of  the  City  of  Monkoe  et  al. 


The  ordinance  of  1787,  for  the  government  of  the  Territory  of  the  United 
States  northwest  of  the  River  Ohio,  is  no  part  of  the  fundamental  law  of 
the  State,  since  its  admission  into  the  Union.  It  was  then  super  eded  by 
the  State  Constitution;  and  such  parts  of  it  as  are  not  to  be  found  in  the 
Federal  or  State  Constitution,  were  then  annuUed  by  mutual  consent. 

That  ordinance  was  enacted  before  the  Constitution  of  the  United  States,  with 
a  view  to  existing  circumsta,nces ;  and  was  intended  to  operate  between 
the  confederacy  and  the  territory,  as  the  articles  of  confederation  did  be- 
tween the  States.  In  construing  it,  the  articles  of  confederation,  and  not 
the  Federal  Constitution,  must  be  looked  at. 

Navigable  waters  are  public  highways  at  common  law;  and  the  only  object 
of  the  clause  in  the  ordinance  of  1787,  relating  thereto,  was,  to  secure  to 
citizens  of  the  Confederated  States  such  rights,  in  relation  to  those  waters 
within  the  territory  northwest  of  the  Ohio,  as  were  already  possessed  by 
the  inhabitants  of  that  territory;  and  to  prevent  any  tax  or  duty  on  per- 
sons navigating  them.^ 

By  the  "permanent  constitution  and  State  government,"  mentioned  in  the 
ordinance,  is  to  be  understood  the  establishment  of  a  new  government,  as 
a  substitute  for  the  territorial  one,  and  a  constitution  instead  of  the  ordi- 
nance ;  and  this  substitution  was  to  be  not  for  part,  but  for  the  whole  of 
each. 

There  is  nothing  in  the  ordinance  prohibiting  the  State  from  improving  its 
navigable  waters. 

Where  complainants  were  authorized  by  their  charter  to  erect  works,  &c., 
and  improve  the  harbor  of  La  Plaisance  bay,  held,  that  the  diversion  of  a 
river,  at  a  point  some  distance  above  its  mouth,  in  the  bed  of  which  they 
had  no  title,  which  flowed  into  said  bay,  and  caused  a  channel  to  be  kept 
open  through  it,  created  no  damage  for  which  they  were  entitled  to  com- 
pensation. 

^See  Moore  v.  Sanbome,  2  Mich.,  519. 

As  to  what  are  navigable  streams,  see  Moore  v.  Sanborne.  siiiyra;  Tyler  r. 
The  People,  8  Mich.,  320;  Lorman  v.  Benson,  8  id.,  18;  Attorney  General 
V.  Evart  Booming  Co.,  34  id.,  462. 

As  to  what  is  necessary  to  render  a  stream  a  public  highway.  See  Mooi*e  r. 
Sanbome,  supra;  Thunder  Bay  Co.  v.  Speedily,  31  id.,  336;  Grand  Rapids 
Booming  Co.  v.  Jarvis,  30  id.,  308. 

152 


FIEST  CIRCUIT,  MAY,  1843.  156 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

The  bods  of  all  meandered  streams  and  navigal)le  waters,  belong  to  the  Stat  • 
within  which  they  lie;  and  the  riparian  proprietor  has  no  right  to  the  land 
covered,  without  express  grant. ' 

Public  grants  are  to  be  construed  strictly,  and  nothing  passes  under  them  by 
implication.'^ 

*Tiiis  was  a  motion  to  dissolve  au  injunction,  for  [*15()] 
want  of  equity  in  tlie  bill. 

Tlie  bill  states  that  the  coni]>lainants,  by  an  act  of  the  legis- 
lature of  the  Territory  of  Michigan,  approved  April  25tlu 
1825,  were  constituted  a  body  politic  and  corporate,  for  the 
purj^ose  of  im])roving  the  harbor  of  La  Plaisance  bay,  on  the 
border  of  Lake  Erie,  in  the  county  of  Monroe,  and  erecting  piers, 
wharves,  warehouses,  and  other  necessary  buildings  and  im- 
provements in  and  about  said  bay,  for  commercial  purposes,  and 
to  purchase  and  hold  such  real  and  personal  estate  as  should  bo 
necessary  for  the  purposes  of  their  creation;  and  that  tliey 
have  gone  into  operation,  and  continued  their  corporate  succes- 
sion regularly,  down  to  the  time  of  filing  the  bill  of  complaint. 
That,  soon  after  their  organization,  complainants  proceeded  to 
erect  a  warehouse  on  a  pier  in  said  bay,  on  the  margin  of  the 
channel  of  a  branch  of  the  River  Raisin,  which  runs  into  said 
bay;  and,  finding  it  necessary  for  the  convenience  of  vessel- 
loading  and  unloading,  to  connect  their  warehouse  and  wharf 
with  the  shore,  and  the  southwest  shore  of  the  bay  being  the 
nearest  available  point,  they  created,  at  great  expense,  a  bridge 
or  wharf  extending  to  the  shore,  the  space  between  their  se- 
lected location  and  the  shore  being  an  extent  of  shallow  watei- 
and  marsh,  unfit  for  their  purposes,  and  which  could  not  be 
reached  by  vessels  carrying  on  the  commerce  of  Lake  Erie. 
That  their  object  in  selecting  their  location  was  to  command 
the  nearest  possible  ap|)roach  to  the  city  (then  village)  of  Mon- 

'  Oveniiled  as  to  this  point  by  Lorman  v.  Benson,  8  Mich.,  18.  See,  also. 
Attorney  General  f.  Evai-t  Booming  Co.,  34  Mich..  462;  Ryan  v.  Brown,  18  id., 
190;  Rice  v.  Ruddiman,  10  Mich.,  12.5;  Clark  v.  Campau,  19  id.,  .325;  Watson 
V.  Peters,  26  id.,  508;  Bay  City  Gas  Light  Co.  v.  Industrial  Works,  28  id., 
182. 

2  See  Ballon  r.  O'Brien,  20  Mich.,  .304;  Johnson  v.  Ballou,  28  id.,  384;  Stock- 
ton r.  Williams,  cutte.,  120. 

153 


157  CASES  m  CHANCERY. 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

roe,  and  tliat  the  current  of  the  River  Raisin,  running  througji 
said  bay,  and  by  their  warehouses,  caused  a  sufficient  depth 
of  water  to  ensure  access  to  most  of  the  vessels  and 
other  craft  navigating  the  lakes;  that  no  sufficient  depth  o/ 
water  could  be  obtained,  unless  the  current  which  runs 
i'^15T]  by  their  works,  (  and  which  is  caused  by  the  '^princi- 
pal branch  of  the  River  Raisin  running  into  said  bay,) 
were  kept  clear  and  unobstructed;  that,  when  its  discharge 
and  flow  are  unobstructed,  this  result  is  obtained,  except 
at  uncommonly  low  stages  of  w^ater  in  Lake  Erie,  and  ^a 
depth  of  water  obtained  in  the  channel  averaging  from  six  to 
nine  or  ten  feet,  or  more.  That,  about  the  twenty -fifth  day  elf 
December,  1825,  they  purchased  a  piece  of  land  on  the  south- 
west side  of  the  bay  for  the  purpose  of  making  the  connection 
above  mentioned  between  their  warehouse  and  wharf,  on  the 
margin  of  the  channel  and  the  shore,  and  then  accomj)lislied 
the  connection  by  building  the  before  mentioned  bridge  or  way, 
on  piles  extending  about  twelve  hundred  feet,  at  an  expense  of 
several  thousands  of  dollars.  That,  for  six  years  past,  they 
have  been  in  the  peaceable  possession  and  enjoyment  of  the 
property,  and  their  works  have  been  for  a  long  time  the  prin- 
cipal and  almost  only  point  of  communication  for  the  lake 
commerce  with  the  city  of  Monroe  and  the  adjacent  country, 
and  have  been  a  source  of  considerable  profit  to  themselves. 
That  the  availability  of"  their  works,  and  the  sufficiency  of  the 
channel  aforesaid  for  navigation,  depends  upon  the  unobstruct- 
ed flow  of  the  waters  of  the  river,  and  that  the  channel  will 
hereafter,  as  heretofore  it  has  done,  continue  to  be  a  safe  and 
commodious  passage  for  steamboats  and  vessels  to  and  by  said 
wharf,  unless  the  branches  emptying  into  La  Plaisance  bay  are 
stopped,  or  the  water  is  in  any  way  div^erted;  that,  if  such 
stoppage  or  diversion  is  permitted,  the  channel  will  become 
obstructed  by  alluvial  deposits,  which  the  current  is  now 
strong  enough  to  carry  away,  and  the  works  of  complainants 
will  be  rendered  worthless. 

That  the  River  Raisin  and  La  Plaisance  bay  are  connected 
with   the  St.  Lawrence   river,   by  means  of  Lake  Erie;  that 

154 


FIRST  CIRCUIT,  MAY,  1843.  158 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

they  are  within  the  country  formerly  called  the  ^IsTorth-  ['^158] 
west  Territory,  and  subject  to  the  ordinance  of  July 
18th,  1787,  entitled  "  An  ordinance  for  the  government  of  the 
Territory  of  the  United  States  northwest  of  the  River  Ohio;" 
that,  among  certain  articles  of  compact  therein  contained,  is 
one  declaring  that  "  the  navigable  waters  leading  to  the  Missis- 
si  p})i  and  St.  Lawrence,  and  the  carrying  places  between  the 
same,  shall  be  common  highways,  and  forever  free,  as  well  to 
the  inhabitants  of  the  said  territory,  as  to  the  citizens  of  the 
United  States,  and  those  of  any  other  State  that  may  be  admit- 
ted into  the  confederacy,  without  any  tax,  impost,  or  duty 
therefor."  That,  by  an  act  of  congress  providing  for  the  sale 
of  the  public  lands  in  the  territory  northwest  of  the  Ohio, 
passed  May  18th,  1798,  this  article  was  recognized  and 
affirmed;  and  that,  in  making  the  United  States  surveys,  the 
said  river  and  its  branches  have  never  been  included  in  any 
survey,  sale,  or  grant,  but  have  been  left  free  and  unincum- 
bered. That  complainants  are  entitled  to  have  it  remain  so, 
and  that  they  are  citizens  of  the  United  States. 

The  bill  further  shows  that  by  an  act  of  the  legislature  of 
the  State  of  Michigan,  entitled  "  an  act  to  amend  an  act  entitled 
'  an  act  to  incorporate  the  city  of  Monroe,'  approved  March 
22d,  1837,"  a2)proved  April  6th,  1838,  the  common  council  of 
the  said  city  of  Monroe,  were  authorized  and  empowered  to 
finish  and  complete  the  canal  and  piers  already  commenced  by 
the  United  States  government,  connecting  the  waters  of  the 
River  Raisin  with  Lake  Erie,  together  with  proper  piers  and 
basins  for  said  canal  within  the  limits  of  said  city,  and  to 
improve  the  navigation  of  the  said  river  within  the  limits  of 
said  city,  by  cutting  through  the  bends  of  the  river.  The  act 
further  provided  for  the  election  of  canal  commissioners,  &c. 
That  the  common  council  of  Monroe,  and  the  canal  commis- 
sioners having  contracted  with  Harvey  W.  Campbell  and 
*George  W.  Strong  for  that  purpose,  are  proceeding  [*159] 
under  color  of  said  act  to  excavate  a  canal  from  the 
River  Raisin  to  Lake  Erie,  and  are  driving  piles  in  some  places 
in  the  bed  of  the  river,  causing  an  obstruction  to  the  current, 

155 


160  CASES  IN  CHANCERY. 

La  Plaisar.ce  Bay  Harbor  Co.  v.  City  of  Monroe. 

and  bj  these  and  other  things  diverting  and  impeding  the 
channel  of  the  river,  and  causing  it  gradually  to  become  filled 
up.  That  they  have  commenced  and  are  proceeding  with  a 
dam  in  the  river  above  comj^lain ants'  works,  which  will  entirely 
cut  off  the  water  flowing  from  the  river  into  the  bay,  and  de- 
stroy the  usefulness  of  complainants'  buildings  and  improve- 
ments. That  the  individuals  engaged  in  the  operations  are 
irresponsible,  and  complainants,  if  left  to  their  remedy  against 
them,  will  be  compelled  by  the  necessity  of  a  multiplicity  of 
suits,  &c.,  to  lose  most  of  their  property  without  compensation. 
That  the  excavations,  piers,  canal,  &c.,  will  create  a  public 
nuisance. 

Prays  that  defendants  may  be  restrained  from  proceeding 
further,  and  maj^  be  compelled  to  remove  the  obstructions  and 
works  tbey  have  already  finished  or  commenced,  and  which 
will  in  any  inanner  impede  the  free  and  unobstructed  flow  of 
the  channel  by  complainants'  works,  and  for  such  other  or 
further  relief  as  the  Court  shall  see  fit  to  grant. 

The  defendants  moved  to  dissolve  the  injunction  which  had 
been  granted  on  the  filing  of  the  bill. 

T.  Homey n,  in  support  of  the  motion. 

I.  The  Court  of  Chancery  has  no  jurisdiction  in  the  prem- 
ises.    There  is  no  equity  in  the  bill. 

First.  The  acts  complained  of,  are  not  in  contravention  of 
the  ordinance  of  1787,  for  the  government  of  the  territory 
northwest  of  the  River  Ohio. 

1.  The  ordinance  was  not  designed  to  deprive  the  States 

which  might  be  formed  in  the  JSTorthwest  Territory  of 
[■'■'^160]  any   ^control   over  their   navigable  waters,  which  the 

original  states  could  exercise  over  navigable  waters 
within  their  limits. 

2.  Even  if  this  were  not  so,  yet  the  acts  complained  of  are 
intended  and  adapted  to  improve  the  navigation  of  the  river, 
and,  therefore,  are  not  within  the  supposed  inhibitions  of  the 
ordinance.  Of  their  expediency,  the  legislature,  and  not  the 
Court,  must  judge. 

156 


FIRST  CIRCUIT,  MAY,  1843.  161 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Mom  De. 

Second.  The  acts  complained  of,  are  not  in  contravention  of 
the  article  in  the  constitution,  which  inhibits  the  taking  of 
private  property  for  public  use,  without  compensation. 

II.  Even  if  the  Court  has  jurisdiction,  the  injunction  should 
be  dissolved. 

1.  The  damage  to  tlie  complainants,  is  only  in  anticipation, 
and  it  is  not  certain  whether  it  will  ever  be  felt. 

2.  The  acts  complained  of,  not  being  of  themselves  nui- 
sances, there  should  have  been  an  issue  to  a  jury,  to  ascertain 
whether,  m  their  circumstances  and  results,  they  involved  a 
nuisance. 

3.  The  damage  to  the  defendants,  from  the  delay  of  their 
works,  will  be  great  and  immediate;  the  damage  of  the  com- 
])l:iinants  is  remote  and  doubtful.  Under  these  circumstances, 
a  preliminary  injunction  should  not  have  been  granted.  Hav- 
ing been  granted,  it  should  be  dissolved. 

4.  The  injunction  should  not  have  been  granted  without 
security  for  damages. 

D.  Goodioiii  and  H.  T.  Baelius,  contra. 

R.  T.  Backus. 

I.  Has  this  Court  jurisdiction  of  the  subject  matter? 

It  is  a  well  established  branch  of  equity  jurisdiction,  to  pre- 
vent the  creation  of  a  public  nuisance,  which  also  tends 
'^to  the  destruction  of  private  property;  and  this  Court  [*161] 
has  undoubted  right  to  interfere  by  injunction,  where 
either  private  individuals,  on  their  own  responsibility,  or  per- 
sons in  an  official  or  quasi  official  position,  purporting  to  act 
under  a  statute,  are  doing  unwarrantable  acts,  to  the  injury  and 
destruction  of  the  rights  of  others. 

II.  The  case  made  by  the  l)ill  entitles  the  complainants  to 
the  relief  songht. 

1.  By  the  organization  of  the  La  Plaisance  bay  harbor  com- 
pany, their  rights  under  their  charter  have  become  vested,  and 
cannot  be  taken  away.  As  a  cor]5oration  they  possess  all  the 
powers  conferred  by  the  act,  and  all  implied  powers  necessary 

157 


162"  CASES  m  CHAN"CERT. 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

to  effect  the  object  of  their  creation;  and  their  implied  rights 
are  equally  inviolable  with  their  express  powers. 

2.  The  River  Raisin,  which  defendants  seek  to  dam  and  di 
vert,  is  one  of  the  rivers  and  water  courses  embraced  in  the 
ordinance  of  1787,  and  their  acts  are  in  violation  of  the  provis- 
ions of  that  ordinance,  respecting  such  waters. 

3.  A  vested  and  well  defined  interest  in  the  use  of  water, 
whether  navigable  or  otherwise,  may  exist  as  well  as  an  interest 
in  an}'  other  species  of  property. 

4.  Neither  the  State,  nor  the  city  of  Monroe,  can  destroy  the 
property  of  individuals,  except  upon  the  constitutional  terms 
of  giving  adequate  compensation. 

5.  The  act  of  the  legislature  under  which  defendants  are  pro- 
ceeding, authorizes  no  such  acts  as  are  complained  of.  I^o  act 
will  be  construed  to  have  an  effect  so  manifestly  subversive 
of  private  rights,  unless  expressed  in  the  most  unequivocal 
terms. 

The  Chancellok.  The  motion  is  opposed,  principally,  on 
two  2:rounds: 

First.  That  the  act  amending  the  charter  of  the  city 
[*162]  *of  Monroe,  so  far  as  it  relates  to  the  improvement  of 
the  navigation  of  the  River  Raisin,  in  the  manner  stated, 
is  in  contravention  of  the  ordinance  of  1787,  for  the  govei'u- 
ment  of  the  territory  of  the  United  States,  northwest  of  the 
River  Ohio;  the  ordinance  providing  that  "  the  navigable  waters 
leading  into  the  Mississippi  and  St.  Lawrence,  and  the  carrying 
places  between  the  same,  shall  be  common  highways,  and  for- 
ev^er  free,  as  well  to  the  inhabitants  of  the  said  territory,  as  to 
the  citizens  of  the  United  States,  and  those  of  any  other  States 
that  may  be  admitted  into  the  confederacy,  without  any  tax, 
impost,  or  duty  therefor.     Art.  4. 

Second.  That  no  provision  is  made  by  the  act  for  compen- 
sating complainants,  or  others,  who  might  be  injured  by  the 
improvement,  in  pursuance  of  the  State  constitution,  whicli 
says,  "The  property  of  no  person  shall  de  taken  for  public  use, 
without  just  compensation  therefor."     Art.  1,  §  19. 

158 


FIRST  CIECUIT,  MAY,  1843.  163 

La  E'laisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

It  was  also  urged,  as  a  reason  wh}"  tlie  injunction  shonld  not 
be  dissolv^ed,  tliat  tlie  act  of  the  legislature  does  not  authorize 
a  dam  across  the  river.  It  is  true  the  act  says  nothing  about  a 
dam,  but  it  authorizes  the  defendants  to  finish  and  complete 
the  canal  and  piers  heretofore  commenced  bj  the  United  States; 
and  it  is  nowhere  stated  in  the  bill,  that  the  dam  is  not  a  part 
of  the  improvement  originally  contem]ilated.  But  whether 
that  be  so  or  not,  is  immaterial.  The  o])ject  intended,  is  the 
improvement  of  the  navigation  of  the  river;  and,  to  that  end, 
the  act  authorizes  the  turning  of  it,  at  certain  points,  from  its 
natural  bed  into  new  channels,  where  it  might  be  made  better 
to  subserve  the  ends  of  commerce.  The  erection  of  the  dam, 
for  this  purpose,  is  clearly  within  the  act.  It  is  not  necessary 
that  the  power  should  be  expressly  given;  it  maybe  im- 
plied from  the  nature  of  the  grant.  It  would  *be  use-  [*163] 
less  to  form  a  new  bed  for  the  river,  if  the  power  to  turn 
the  water  into  it  was  withheld. 

-  The  injunction  must,  therefore  be  dissolved,  unless  it  can  be 
sustained  on  one  or  the  other  of  the  grounds  above  stated. 

The  ordinance  of  1787,  in  my  opinion,  is  no  part  of  the  fun- 
damental law  of  the  state  since  its  admission  into  the  Union. 
It  was  then  superseded  by  the  state  constitution,  and  such 
parts  of  it  as  are  not  to  be  found  in  either  the  federal  or  state 
constitutions,  were  then  annulled,  by  mutual  consent. 

The  articles  of  confederation  between  the  thirteen  original 
states,  were  entered  into  July  9th,  1778,  and  were  afterwards  su- 
perseded b}'-  the  constitution  of  the  United  States,  in  March,  178!). 
The  ordinance  was  passed  July  13th,  1787, — one  year  and  eight 
months  before  the  constitution  took  effect,  and  two  months  be- 
fore it  came  from  the  hands  of  the  C(-tnvention  that  formed  it. 
The  ordinance  must,  consequently,  have  been  drawn  with  a 
view  to  the  then  existing  government  under  the  articles  of  con- 
federation. If  the  constitution  had  been  in  operation  at  that 
time,  it  can  hardly  be  supposed  that  the  ordinance  would  have 
been  what  it  is;  for  a  new,  and,  in  most  respects,  entirely  dif- 
ferent state  of  things  exists  under  the  constitution,  from  what 
existed  under  the  articles  of  confederation.     To  understand, 

150 


164  CASES  m  CHAXCEEY. 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

therefore,  the  ordinance,  and  the  different  ol)jects  had  in  view 
bv  it,  we  mnst  look  to  the  articles  of  confederation,  and  not  to 
the  constitution  of  the  United  States. 

Most  of  the  ordinance  was  subject  to  change  or  alteration,  by 
congress,  or  the  territorial  legislature.  Of  this  character  is  the 
whole  ordinance,  except  the  last  two  sections;  one  of  which, 
(the  last  section,)  contains  six  articles  of  compact  be- 
[*1G4]  tween  the  original  states  and  the  people  and  ^states  in 
the  territory,  which  w^ere  to  remain  unalterable,  unless 
l)y  common  consent. 

These  articles  appear  to  have  had  several  objects  in  view. 
First.  To  supply  the  place  of  a  constitution,  until  the  new 
states  to  grow  up  in  the  territory  should  be  admitted  to  all  the 
rights  of  the  confederacy.  Without  something  of  this  kind, 
the  property  and  personal  liberty  of  the  inhabitants  of  the  ter- 
ritory would  have  been  subject  to  the  caprice  or  whim  of  the 
local  legislature.  Second.  To  make  the  territory  a  part  of  the 
confederacy,  with  certain  rights,  before  the  new  states  were 
organized;  and  not  a  mere  dependency  of  the  confederacy,  with- 
out any  rights  of  its  own.  The  confederation  was  a  compact 
l)etween  sovereign  states.  It  was  obligatory  upon,  and  secured 
the  rights  of,  the  states  that  were  parties  to  it,  but  it  went  no 
further;  and,  when  the  territory  northwest  of  the  Ohio  ceased 
to  be  a  component  part  of  any  one  of  these  states,  it  would,  at 
the  same  time,  have  ceased  to  be  a  part  of  the  confederacy,  and 
to  be  subject  to  the  articles  of  confederation,  but  for  the  ordi- 
nance. Between  the  confederacy  and  territory,  the  ordinance 
was  what  the  articles  of  confederation  were  between  the  origi- 
nal thirteen  states, — a  bond  of  union,  and  a  guaranty  of  the 
rights  of  the  citizens  of  each  within  the  territorial  limits  of  the 
others.  Hence,  by  the  fourth  article  of  the  ordinance,  the  ter- 
ritory and  states  to  be  formed  therein  were  to  remain  a  part  of 
the  confederacy,  subject  to  the  articles  of  confederation,  and  the 
acts  and  ordinances  of  congress, — to  pay  a  part  of  the  federal 
debt  and  expenses  of  the  federal  government,  and  for  that  pur- 
pose to  levy  taxes;  not  to  interfere  with  the  primary  disposal 
160 


FIPwST  CIRCUIT,  MAY,  1843.  165 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

of  tlie  soil  by  the  United  States,  and  to  impose  no  taxes  on  lands 
belonging  to  the  United  States. 

The  same  article  further  provides  that  non-resident 
*proprietors  shall  not  be  taxed  higher  than  residents;  and  [*1C5] 
"that  the  navigable  waters  leading  into  the  Mississippi  and 
St.  Lawrence,  and  the  carrying  i)laces  between  the  same,  shall  be 
common  highways,  and  forever  free,  as  well  to  the  inhabitants 
of  the  said  territory,  as  to  the  citizens  of  the  United  States,  and 
those  of  any  other  state  that  may  be  admitted  into  the  confed- 
eracy, without  any  tax,  impost,  or  duty  therefor."  All  naviga- 
ble rivers,  by  the  common  law,  which  law  was  guarantied  to 
the  citizens  of  the  territory  l)y  the  ordinance,  are  public  high,- 
Avavs.  The  clause  in  question  was  not  necessary  to  secure  these 
rights,  and  it  would  not  therefore,  perhaps,  be  a  forced  con- 
struction of  it,  to  say  that  it  was  intended  to  secure  within  the 
territory',  to  the  citizens  of  the  states,  what  was  already  secured 
to  them  in  the  states  by  the  fourth  article  of  confederation, 
which  says,  "  the  people  of  each  state  shall  have  free  ingress 
and  regress  to  and  from  any  other  state,  and  shall  enjoy  therein 
all  the  privileges  of  trade  and  commerce,  subject  to  the  same 
duties,  impositions,  and  restrictions,  as  the  inhabitants  thereof, 
respectively."  The  articles  of  confederation  dealt  with  states 
only.  Besides,  the  drift  of  the  whole  seems  to  be  to  guard 
a"-ainst  the  imposition  of  any  tax,  impost,  or  duti/,  on  persons 
traveling  or  trading  upon  the  rivers  of  the  territory,  which,  at 
that  early  day,  must  have  been  its  principal,  if  not  only  high- 
ways. 

Third.  The  principal  and  great  object  of  the  ordinance  was, 
to  secure  to  the  states,  to  be  formed  within  the  territory,  admis- 
sion into  the  Union  on  an  equal  footing  with  the  original 
states,  and  with  constitutions,  and  forms  of  government,  based 
upon  the  great  fundamental  principles  of  civil  and  religious 
liberty  contained  in  the  ordinance  itself;  except  so  far  as  they 
might  be  departed  from,  or  changed,  with  the  assent  of 
both  parties.  The  articles  of  ^confederation  provided  [166*] 
for  the  admission  of  no  state,  except  Canada,  without  the 
assent  of  nine  of  the  thirteen  states.  Art.  II.  Is^ow,  each  of  the 
YoL.  I.— 11  161 


167  CASES  m  CHAKCERY. 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

states  of  the  northwest  temtory  was,  by  the  ordinance,  to  be 
admitted  into  the  Union,  on  an  equal  footing  with  the  original 
states,  in  all  respects  whatever,  when  it  should  have  sixty  thou- 
sand free  inhabitants.  It  was  also  to  be  at  liberty  "  to  form  a 
permanent  constitution  and  state  government:  Provided,  the 
constitution  and  government,  so  to  be  formed,  shall  be  republi- 
can, and  in  conformity  to  the  principles  contained  in  these 
articles.^^  By  permanent  constitution  and  government,  I  un- 
derstand a  new  government,  that  is  to  take  the  place  of  the  ter- 
ritorial government  and  a  constitution  that  is  to  take  the  place 
of  the  ordinance.  That  the  one  is  to  be  substituted  for  the 
other,  not  in  part,  but  in  the  whole. 

Such  appears  to  have  been  the  construction  given  to  the  or- 
dinance, by  congress,  on  the  admission  of  the  state.  It  was 
made  one  of  the  conditions  of  her  admission  that  she  should 
not  interfere  with  the  sale,  by  the  United  States,  of  the  vacant 
and  unsold  lands  within  her  limits,  and  that  she  should  not  tax 
them.  R.  S.  30.  The  same  condition  was  also  attached  to  the 
grant,  made  by  congress,  of  public  lands  to  the  state,  with  a 
further  condition,  that  the  state  should  not  tax  the  lands  of 
non-resident  proprietors  higher  than  those  of  residents.  Laws 
1836,  p.  59.  The  ordinance  contains  like  limitations  of  the 
power  of  the  local  legislatures,  but  there  was  nothing  of  the 
kind  in  the  state  constitution. 

The  thirteenth  section  of  the  ordinance,  which  is  in  the  na- 
ture of  a  preamble  to  the  following  section  containing  the  arti- 
cles of  compact,  declares  the  different  objects  had  in  view  by 
them.     One  of  those  objects  is  stated  in  these  words:  "to  fix 

and  establish  those  principles  as  the  l>asis  of  all  laws,  con- 
[*167]  stitutions  and  governments,  which  forever  ^hereafter 

shall  be  formed  in  the  said  territory."  That  is,  to  deter- 
mine the  different  political  elements  that  should  enter  into,  and 
form,  the  constitutions  and  governments  of  the  states  whicli 
should  grow  up  in  the  territory,  unless  waived  by  common  con- 
sent. Everything,  therefore,  contained  in  the  ordinance,  and 
not  carried  into  the  state  constitution,  was  annulled  by  com- 
mon consent,  on  the  admission  of  Michigan  into  the  Union. 

162 


FIEST  CIKCUIT,  MAY,  1843.  *  168 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

Whether  correct  or  not,  on  this  point,  is  immaterial  in  thr 
present  case.  There  is  nothing  in  the  ordinance  prohibiting 
the  state  from  improving  the  navigation  of  its  rivers.  Spooner 
V,  McConnell,  1  McLean  R.,  337;  Hutchinson  v,  Thompson, 
9  Ohio  R  ,  52.  The  mode  of  improvement  is  to  be  determined 
by  the  legishitnre,  and  not  by  the  Court.  But  tlie  state,  or 
those  authorized  by  it,  cannot  take  private  property  for  that 
]iurpose,  Mnthout  first  making  compensation.  The  state  con- 
stitution says:  "The  property  of  no  person  shall  be  taken  for 
l)ublic  use,  without  just  compensation  therefor,"  Art.  1,  §  19 
This  brings  us  to  the  all  important  question, — the  rights  of 
complainants  in  the  water  of  the  River  Raisin. 

Have  the  complainants  a  right  to  the  flow  of  the  water  in  the 
Raisin,  in  its  natural  bed?  They  do  not  own  the  bed  of  the 
stream,  or  the  land  on  either  side  of  it.  Their  warehouse  and 
wharf  are  not  on  the  bank  of  the  river,  but  in  La  Plaisance 
bay,  which  forms  no  part  of  the  river,  but  is  a  part  of  the  shore  of 
Lake  Erie.  The  river  empties  into  the  bay,  or,  rather,  into  what 
may  be  called  a  neck  of  the  bay,  about  a  mile  and  a  half  north 
of  the  wharf.  This  neck  extends,  in  a  southerly  direction,  about 
half  or  three-quarters  of  a  mile,  and  the  whole  bay,  with  this 
exception,  is  a  part  of  the  lake  shore.  This  is  not  a  case,  then, 
in  which  the  defendants  are  about  to  divert  a  stream  that 
has  been  wont  to  flow  through  complainants'  *land.  The  [*168] 
complainants  do  not  own  either  the  bed,  or  the  banks,  of 
the  river,  below  the  point  of  obstruction.  The  bed  of  tlie 
stream  is  public  property,  and  belongs  to  the  state.  This  is  the 
case  with  all  meandered  streams,  no  part  of  tliem  being  included 
in  the  original  survey;  and  the  common  law  doctrine  of  u^qite 
ad  filum  aqiKe  is  not  applicable  to  them.  The  public  owns  the 
bed  of  this  class  of  rivers,  and  is  not  limited  in  its  right  to  an 
easement,  or  right  of  way  only.  So,  with  regard  to  our  large 
lakes,  or  such  parts  of  them  as  lie  within  the  limits  of  the  state. 
The  proprietor  of  the  adjacent  shore  has  no  property  whatever 
in  the  land  covered  by  the  water  of  the  lake.  The  land  under 
complainants'  warehouse  and  wharf  belongs  to  tl]e  state.     We 

163 


169'  '     CASES  II^T  CHANCERY. 

La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe. 

must  look  theu,  for  complaiiiants'  rights,  to  tlieir  charter,  and  to 
that  alone. 

If  their  charter  does  not  give  them  the  right  for  which  they 
contend,  they  have  no  such  right  j  and  the  damage  they  may 
sustain,  if  any,  will  be  da7nnum  absque  injuria.  It  will  be  one 
of  those  remote  consequential  damages,  which  a  greater  or  less 
number  of  individuals  sustain  by  every  public  improvement. 
Every  diversion  of  trade  into  new  channels,  is  an  injury  to 
those  who  were  previously  in  receipt  of  its  profits.  But  this 
is  an  injury  for  which  the  law  makes  no  compensation;  for  if  it 
did,  there  would  be  an  end  to  everything  like  improvement. 
Should  the  improvement  of  the  defendants  take  away  all  busi- 
ness from  complainants'  wharf,  it  would  be  the  misfortune  of 
the  latter,  but  the  defendants  would  be  under  no  legal  or  moral 
obligation  to  make  remuneration.  So,  if,  in  consequence  of  the 
diversion  of  the  river,  the  channel  in  front  of  their  wharf  should 
be  filled  up  by  the  action  of  the  winds  and  waves ;  unless  they 
have  a  right  under  their  charter  to  the  flow  of  the  river  in  its 
natural  channel. 

The  charter  does  not  so  much  as  mention  the  River 
[*169]  ^Raisin,  or  the  current,  or  channel  formed  in  the  bay  by 
the  water  discharged  at  its  mouth;  nor  is  there,  in  any 
part  of  the  charter,  the  most  distant  allusion  made  to  either. 
John  Anderson  and  seven  other  individuals  named  in  the  act, 
and  such  other  persons  as  had  associated,  or  should  associate 
with  them,  were  incorporated  "  for  the  purpose  of  improving 
the  harbor  at  La  Plaisance  bay,  on  the  border  of  Lake  Erie,  in 
the  county  of  Monroe,  and  erecting  j)iers,  wharves,  warehouses, 
and  other  necessary  buildings  and  improvements,  in  and  about 
said  bay,  for  commercial  purposes."  This  is  the  whole  extent 
of  the  grant  made  to  complainants.  The  right  contended  for 
is  not  given  in  exj)ress  terms,  and,  if  it  exists,  must  be  implied. 
I  can  see  nothing  in  the  charier  from  which  it  can  be  imj)lied. 
Xo  one,  from  reading  the  cliarter,  would  dream  of  it.  But  it 
is  unnecessary  to  pursue  this  branch  of  the  case  further ;  for  all 
public  grants  are  to  be  construed  strictly,  and  nothing  passes 
under  them  by  implication,  Charles  River  Bridge  v.  Warren 
164- 


FIRST  CIECUIT,  JU.XE,  1843.  UO 

Schwivrz  I'.  Sears. 

Brulge,  11  Pet.  R.  5-44.     Stourbridge   Canal  v.   Wheeley,  2 
Earn.  &  Adol.  792. 

Injunction  dissolved  with  costs. 


*JoHN  E.  ScnwAEz  et  at.  v.  Nathan  Sears  [*I70] 

et  al. 

The  Court  of  Chancery  will  not  prevent  a  mortgagee  from  taking  possession 
of  mortgaged  premises,  or,  if  he  is  in  possession,  deprive  him  of  it,  so  long 
as  there  is  anything  due  on  the  mortgage.^ 

If  a  mortgagor  wishes  to  test  the  validity  of  a  statutory  foreclosure  in  this 
Court,  he  must  file  a  bill  to  redeem.  He  cannot  file  a  bill  to  set  aside  the 
sale,  and  have  the  property  re-sold,  although  the  mortgagee  may  have 
abused  the  power  to  sell,  and  purchased  the  property  himself. 

A  cross-bill  is  necessarj',  where  the  defendant  is  entitled  to  some  positive  re- 
lief, beyond  what  the  complainant's  bill  wUl  afford  him.^ 

Bill  to  set  aside  statutory  foreclosure,  or  for  leave  to  redeem. 
The  bill  states  that,  September  13th,  1836,  a  mortgage  was 

'  See  Stevens  v.  Brown,  ante,  41  and  note. 

*See  Andrews  v.  Kibbee,  12  Mich.,  94;  Dye  v.  Mann,  10  id.,  291;  Wisner 
t'.  Farnham,  2  id.,  472;  Caruthers  v.  Hall,  10  id.,  40;  Farmers  and  Mechanics' 
Bank  v.  Bronson,  14  id.,  361. 

As  to  the  object  and  scope  of  cross-bills,  see,  also,  Ballance  v.  Underbill,  3 
Scam.,  453;  Tarleton  v.  Vietes,  1  Gilm.,  470;  Hurd  v.  Case,  32  111.,  45;  Morgan 
r.  Smith,  11  id.,  195;  Jones  v.  Smith,  14  id.,  239;  Ferris  v.  McClure,  36  id., 
77;  Atkin  v.  Merrill,  39  id.,  63;  Stone  v.  Smoot,  39  id.,  409;  Howett  v.  Selby, 
54  id.,  151;  Kennedy  v.  Kennedy,  66  id.,  190;  Thompson  r.  Shoemaker,  68 
id.,  256;  Campbell  v.  Benjamin,  69  id.,  244;  Wing  r.  Goodman,  75  id.,  159. 

As  to  cross-bills  in  mechanics'  lien  cases,  see  Howett  v.  Selby,  54  id.,  151; 
Thielman  v.  Carr,  75  id.,  385. 

As  to  making  answer  a  cross-bill,  see  Thielman  v.  Carr,  supra. 

As  to  parties  to  cross-bills,  see  Kennedy  v.  Kennedy,  66  111.,  190;  Thompson 
V.  Shoemaker,  68  id.,  256. 

As  to  the  hearing  of  causes  wherein  a  cross-bill  has  been  filed,  see  Beau- 
champ  V.  Putnam,  34  lU.,  378;  Myers  v.  Manny,  63  id.,  211;  Hungate  r. 
Reynolds,  72  id.,  475. 

165 


171  CASES  IN  CHANCEKY. 

Scliwarz  v.  Sears 

given  to  Tunis  S.  Wendell,  as  trustee  for  Catharine  Schwarz,  to 
Xathan  Sears,  for  $2,000.  That,  :N'ovember  3d,  1837,  Sears, 
claiming  there  was  then  due  on  the  mortgage  $2,220.49,  pro- 
ceeded to  foreclose  it  under  the  statute,  and,  on  the  sale,  which 
took  place  on  the  thirty-first  day  of  January  following,  pur- 
chased the  premises  for  $2,274.49,  and  took  the  sheriff's  certifi- 
cate for  a  deed  in  two  years,  unless  the  mortgaged  premises 
should  be  redeemed  before  that  time.  That  the  statutory  fore- 
closure was  not  in  accordance  with  the  provisions  and  require- 
ments of  the  statute,  but  was  radically  defective,  and  variant 
therefrom,  in  many  particulars,  some  of  which  were  set  out  to 
the  bill.  Tliat,  March  31st,  1838,  ]N"athan  Sears  sold  and  con- 
veyed his  interest  in  the  premises  to  Peter  Sears,  to  whom  a 
payment  of  $1,500  was  made,  January  31st,  1839,  when  he 
agreed  to  wait  for  the  balance  until  the  first  of  April  following. 
That,  April  18th,  1839,  a  further  payment  was  made  to 
[*171]  him  of  $40,  September  7th,  1839,  a  *payment  of  $10, 
and  November  7th,  1839,  a  payment  of  $120. 

The  bill  prayed  that  the  statutory  foreclosure  might  be  de- 
clared to  be  irregular,  defective,  and  absolutely  null  and  void; 
or,  in  case  it  should  be  held  legal,  that  complainants  might  be 
permitted  to  come  in  and  redeem,  they  offering  to  pay  what- 
ever was  due  on  the  mortgage. 

The  bill  was  taken  as  confessed. 

A.  D.  Fraser  <&  A.  Davidson^  for  complainants. 

A.  TF.  Buel,  for  defendants. 

The  Chancellor.  The  only  question  is  as  to  the  form  of 
the  decree  to  be  entered.  Complainants  insist  they  are  entitled 
to  a  decree  setting  aside  the  statutory  foreclosure,  and  for  their 
costs.  Defendants,  on  the  contrary,  contend  that  the  decree  to 
be  entered  should  be  for  a  redemption  of  the  mortgaged  prem- 
ises, and,  in  case  of  default,  for  a  foreclosure  and  sale.  In 
other  words,  they  contend  that  tlie  decree  should  be  the  same 
as  if  a  bill  had  been  filed  to  foreclose  the  mortgage.  Neither 
1G6 


FIKST   CIRCUIT,  JUNE,  18i3.  172 


Schwarz  v.  Sears. 


of  these  positions,  it  appears  to  me,  is  correct.  The  bill  is,  in 
fact,  nothing  more  or  less  than  a  I)ill  for  the  redemption  of  the 
mortgaged  premises.  As  such  it  must  be  considered  and 
treated,  in  all  respects.  It  asks  relief  on  two  distinct  grounds: 
First.  That  the  equity  of  redemption  is  not  barred  by  the 
statutory  foreclosure;  and,  Second,  That,  if  the  proceedings 
under  the  statute  were  regular,  the  foreclosure  was  opened,  by 
the  agreement  of  the  parties,  and  the  receipt  of  a  part  of  the 
mortgage  moneys  under  the  agreement. 

These  two  grounds  for  relief  differ  from  each  other;  yet  the 
relief  to  M'hich  complainants  are  entitled  under  either  one  of 
them  is  the  same.  It  is  to  redeem  the  mortgaged  prem- 
ises, on  paying  what  is  due  on^  the  mortgage, 
^within  such  time  as  shall  be  allowed  for  that  purpose  [*172] 
by  the  Court;  which  is  usually  six  months.  This  is  the 
only  relief  complainants  are  entitled  to.  lie  who  asks  equity 
must  do  equity.  This  Court  will  not  prevent  a  mortgagee 
from  taking  possession  of  the  mortgaged  premises,  or,  if  he 
be  in  possession,  deprive  him  of  that  possession  so  long  as 
there  is  anything  due  on  the  mortgage.  Stevens  v.  Broivn, 
ante  41.  If  a  mortgagor  whishes  to  test  the  validity  of  a 
statutory  foreclosure,  in  this  Court,  he  must  tile  his  bill  to 
redeem.  He  cannot  tile  a  bill  to  set  aside  the  sale,  and  have 
the  property  re-sold,  although  the  mortgagee  may  have  abused 
the  power  to  sell,  and  purchased  the  property  himself.  Gold- 
smith y.  Oshorn,  1  Edw.  R.  560;  2  Ball  &  Beat.  555.  xVnd, 
'*  where  a  mortgagee  is  made  a  party  to  a  bill,  praying  relief 
is  the  same  thing  as  praying  to  redeem;  for  redemption  is  the 
the  proper  relief."  Cholmley  v.  Countess  Dowager  of  Oxford^ 
2  Atk.  R.  267.  Drew  v.  O'Jlara,  2  Ball  &  Beat.  562.  There 
is  nothing  in  Denning  v.  Smith,  3  J.  C.  R.  332,  or  Shernian 
V.  Dodge,  6  J.  C.  R.  107,  op])osed  to  this  doctrine.  Denning 
V.  Smith  was  not  a  statutory  foreclosure  of  a  mortgage.  Bv  a 
statute  of  the  state  of  New  York,  passed  in  1S08,  commission- 
ers were  appointed  to  loan  money  on  mortgage,  and,  on  default 
of  the  mortgagor  to  pay,  the  commissioners  became  seized  of 
an  absolute  estate  in  the  lands,  and  the  mortgagor  was  barred 

167 


173  CASES  m  CHANCERY. 

Schwarz  v.  Sears. 

of  all  riglit  and  equity  of  redemption.  The  commissioners  were 
tlien  to  sell  the  land,  and,  after  paying  the  state,  to  pay  the 
surplus  moneys  to  the  mortgagoi".  The  only  question  in  that 
case  was,  whether  the  commissioners,  as  trustees  both  for 
the  state  and  mortgagor,  had  faithfully  executed  the  trust 
under  the  statute.  The  relation  of  mortgagor  and  mort- 
gagee did  not  exist  in  the   case,     Bherman   v.   Dodge,  was 

somewhat  similar.  It  grew  out  of  a  sale  made  by 
[•^173]  *loan  officers,  but  under  a  law  passed  in  17S6.     It  is  not 

so  fully  reported  as  the  case  of  Denning  v.  Smith,  nor 
does  it  appear,  from  the  report,  whether  an  absolute  discharge 
of  the  equity  of  redemption  vested  in  the  loan  officers,  on  the 
default  of  the  mortgagor  to  pay,  as  under  the  act  of  1808. 
The  contrary,  I  think,  is  fairly  to  be  presumed,  for  the  com- 
plainant is  mentioned  as  the  owner  of  the  equity  of  redemption. 
Supposing  this  to  be  the  case,  it  is  still  no  authority  for  com- 
plainants, because  the  amount  due  to  the  state  on  the 
mortgage,  which  was  less  than  iifty  dollars,  was  tendered  to  the 
purchaser,  and  refused  by  him,  before  the  complainant  filed  his 
bill.  This  sum  was  undoubtedly  paid  into  Court  when  the  bill 
was  filled.  It  is  not  so  stated,  in  the  report  of  the  case,  but 
there  cannot  be  much  doubt  on  the  subject,  for  an  injunction 
was  granted  to  stay  proceedings  in  an  action  of  ejectment,  and, 
in  the  decree  finally  entered,  a  note  given  to  the  loan  officers 
by  the  purchaser  for  the  balance  of  the  purchase  money,  over 
and  above  what  was  due  to  the  state,  was  ordered  to  be  can- 
celled, and  the  purchaser  required  to  release  all  his  interest  and 
title  under  the  purchase,  without  any  mention  of  the  money 
tendered,  which  the  purchaser  must  have  lost  unless  it  was  paid 
into  Court  for  him; — a  result  by  no  means  to  be  presumed,  as 
he  was  not  so  much  as  required  to  pay  costs. 

While  the  ordinary  decree,  therefore,  allowing  the  complain- 
ants to  redeem,  must  be  entered,  I  do  not  feel  authorized,  by 
precedent  or  on  principle,  to  go  further,  and  decree  a  sale  of  the 
premises,  in  case  they  should  not  be  redeemed.  The  complain- 
ants ask  to  redeem ;  they  do  not  ask  to  have  the  mortgaged 
premises  sold;  and,  if  they  had  done  so,  their  bill  might  have 

168 


FIPwST  CIRCUIT,  JUXE,  18-L3.  174 

Schwarz  v.  Sears. 

been  demurred  to  for  that  reason.  Goldsmith  v.  O/ihorn,  1 
Edw.  R.  560.  A  cross-bill  is  necessary  where  the  de- 
fendant is  entitled  to  *some  positiv^e  relief  beyond  what  ['"1T4-] 
the  complainant's  bill  will  afford  hini.  Pattiaon  v. 
IluU^  9  Cow.  R.  747.  If  the  defendants  wished  to  have  the 
mortgaged  premises  sold,  they  should  have  tiled  a  cross-bill.  In 
Hine  v.  Handy,  1  J.  C.  R.  6,  the  order  of  tho  Court  was  that 
an  injunction  issue  to  stay  the  sale  at  law,  r»n  complaiiuint's 
paying  what  should  be  reported  due  by  the  Master.  And,  in 
Nichols  V.  Wilson,  4  J.  C.  R.  115,  an  injunction  having  been 
granted  to  stay  j^roceedings  to  sell,  under  a  power  contained  in 
a  mortgage,  it  was  dissolved  on  terms,  viz:  that  six  weeks' 
further  notice  should  be  given,  and  that  a  reference  should  be 
had,  in  the  mean  time,  to  compute  the  balance  due  on  the  mort- 
gage; on  the  payment  of  which,  no  sale  was  to  be  had.  There 
was  no  positive  relief  given  to  the  mortgagee,  in  either  oi 
these  cases.  The  relief  was  incidental  to  the  proceedings  insti- 
tuted by  the  mortgagor,  and  the  raortagee  was  at  liberty  to  sell 
under  the  power  of  sale,  unless  the  mortgagor,  withiii  a  speci- 
fied time,  paid  him  what  was  due  on  the  mortgage. 

As  there  has,  already,  been  a  reference  to  a  Master,  to  ascer- 
tain the  amount  due  to  the  defendants,  and  his  i-eport  has  been 
confirmed,  there  must  be  a  decree  entered  that  complainants 
pay  to  defendants  the  amount  reported  due,  with  interest  from 
the  date  of  the  report,  and  defendants'  costs,  to  be  taxed,  within 
six  months;  and  that,  thereupon,  defendants  reconvey  the 
mortgaged  premises  to  complainants,  by  a  proper  deeJ,  to  be 
settled  by  a  Master,  free  and  clear  of  all  incumbrances  made  or 
charged  by  them,  or  either  of  them,  or  any  person  claiming  by 
or  under  them,  or  either  of  them,  and  deliver  up  all  deeds  and 
writings  in  their  custody  or  power,  relating  to  the  mortgaged 
premises.  And,  in  default  of  complainants'  paying  the 
amount  rejjorted  due  with  interest  and  costs,  within  the  six 
months,  the  bill  to  be  dismissed  with  costs  to  defendants. 


169 


175  CASES  IN  CHANCEHY, 


Wing  V.  McDowell ;  Simmons  v.  McDowell. 


["^175]*  Warner  Wing,  Wolcott  Lawrence  et  al.  v. 
Christopher  McDowell  and  John  Sim- 
mons, Jr. 

John  Simmons,  Jr.  ,  v.  Christopher  McDowell  et  al. 

In  equity,  a  vendee,  under  a  contract  for  the  sale  of  lands,  is  considered  as  a 
trustee  of  the  purchase  money  for  the  vendor,  who  is  regarded  as  a  trustee 
of  the  land  for  the  former.  The  land  is  in  equity  the  property  of  the  ven- 
dee, who  may  dispose  of,  or  encumber  it  in  like  manner  with  land  to 
which  he  has  the  legal  title,  subject  to  the  rights  of  the  vendor  under  the 
contract.^ 

The  registry  of  an  instrument  not  required  by  law  to  be  recorded,  is  notice  to 
no  one.* 

Where  a  person  mortgages  lands  which  he  holds  under  a  bond  for  a  deed,  ho 
conveys  thereby  no  legal  interest  in  the  bond,  but  only  an  equitable  inter- 
est, and  tPie  registry  of  such  mortgage  is  notice  to  no  one. 

Where  the  equities  of  parties  are  equal,  and  neither  has  the  legal  title,  the 
prior  equity  will  prevail.  ^  Nor  will  a  subsequent  obtaining  of  the  legal 
title  in  right  of  another  and  not  in  one's  own  right,  or  with  notice  of  the 
prior  equity,  aid  the  holder  of  the  postponed  equity. 

The  English  doctrine  of  tacking  mortgages  has  not  been  adopted  in  this 
country. 

Hearing  on  original  and  cross-bills. 

The  original  bill  was  filed  to  foreclose  a  mortgage  executed 
by  McDowell  to  Lawrence,  in  July,  1839,  and  assigned  by- 
Lawrence  to  Wing,  in  trust  to  pay  certain  creditors,  and  to 
account  to  Lawrence  for  the  balance. 

The  cross-bill  was  filed  to  foreclose  two  sev^eral  mortgages 
executed  by  McDowell  to  Simmons; — one  in  September,  1838, 
for  $3,000,  on  a  part  only  of  the  premises  covered  by  Law- 
rence's mortgage,  and  the  other  in  November,  1839,  on  the 

iSee  Fitzhugh  v.  Wilkinson,  34  Mich.,  138;  Brill  r.  Stiles,  35  III.,  305. 
■•«See  Dutton  v.  Ives,  5  Mich.,  515;   Galpinr.  Abbott,  6  id.,  17;"  Farmers' 
and  Mechanics'  Bank  v.  Bronson,  14  id.,  361;   Buell  v.  Irwin,  24  id.,  145. 

•  See  Norris  v.  Showerman,  post,  206. 

170 


FIFTH  CIRCUIT,  JUXE,  1S43.  176 

Wins:  V.  McDowell ;  Simmons  v.  McDowell. 

whole  of  the  premises.  This  last  morto-age  to  Simmons  was 
given  to  secure  the  i)ayment  of  the  $3,000  mentioned  in  tlie 
first  mortgage  to  him,  and  $700  subsequently  advanced  by  him 
to  McDowell.  The  object  of  the  cross-bill  was  to  have 
.that  part  of  the  premises  '''included  in  the  mortgage  to  [*17GJ 
Simmons  for  $3,000  sold  separately,  and  the  $3,000  first 
'paid  out  of  the  proceeds.  The  facts  were  these:  Lawrence 
was  the  owner  in  fee  simple  of  a  farm  of  one  hundred  and 
fifty  acres,  in  the  town  of  Raisinville,  in  the  county  of  Mon- 
roe, on  which  were  a  saw-mill  and  water  power.  June  12th, 
1838,  he  agreed  to  sell  to  McDowell  for  $500,  that  part  of  the 
farm  subsequently  mortgaged  by  the  latter  for  $3,000  to  Sim- 
mons, and  took  his  two  promissory  notes  for  $250  each,  payable 
with  interest,  one  in  a  year,  and  the  other  in  eighteen  months, 
and  gave  McDowell  a  bond  in  the  penal  sum  of  five  thousand 
dollars,  for  a  deed,  on  his  paying  the  notes,  and  erecting  and 
putting  into  operation  a  paper-mill  on  the  premises,  within  a 
year  from  that  time.  McDowell  took  possession  of  the  prem- 
ises, and,  within  the  year,  erected  and  put  into  operation  the 
paper-mill;  and  September  8th,  1838,  executed  the  mortgage 
to  Simmons,  for  $3,000,  which  was  acknowledged  and  recorded 
on  the  same  day. 

August  31st,  1838,  Lawrence  conveyed  the"  balance  of  the 
farm  to  one  William  Tuthill,  and  took  back  a  mortgage  from 
Tuthill,  for  $1,950.  Tuthill,  February  7th,  1839,  sold  and 
deeded  seven  acres  of  the  land  purchased  of  Lawrence,  includ- 
ing the  saw-mill  and  water  power,  to  McDowell,  for  $11,500, 
and  took  from  McDowell  a  bond  and  mortgage,  of  the  same  date, 
for  the  payment  to  himself  of  $9,476.52,  and  to  Lawrence  of  the 
$1,950  mortgage,  executed  to  him  by  Tuthill.  This  mortgage 
covered  not  only  the  premises  conveyed  to  McDowell  by  Tuthill, 
but  also  the  premises  which  Lawrence  had  bound  himself  by 
his  bond  to  convey  to  McDowell,  and  which  had  been  mort- 
gaged by  McDowell  to  Simmons.  The  mortgage  was  re- 
corded March  lltli,  1839,  and  on  the  twenty-fifth  day  of  the  same 
month,  the   mortgage    and   bond   were   assigned   by   Tuthill 

171 


177  CASES  IN  CHANCERY. 

Wing  V.  McDowell ;   Simmons  v.  McDowell. 

[*177]  *to  Lawrence,  and  the  assignment  was  recorded  on  the 
third  day  of  July  following.  Neither  Tiithill  nor  Law- 
rence, at  this  time,  had  any  knowledge  of  Simmons'  mortgage, 
or  that  he  was  in  any  way  interested  in  the  premises  which 
Lawrence  was  to  convey  to  McDowell.  Afterwards,  Lawrence, 
wishing  to  assign  the  bond  and  mortgage  to  Wing,  caused  the. 
registry  of  deeds  and  mortgages  to  be  examined,  to  enable  him. 
to  exhibit  an  abstract  of  his  title  under  the  mortgage;  and,  in 
the  meantime,  he  made  an  arrangement  with  McDowell  to  give 
him  a  deed  for  the  premises  which  he  had,  by  his  bond,  agreed 
to  convey  to  him,  and  to  cancel  the  aforesaid  bond  and  mort- 
2'ao'e  from  McDowell  to  Tuthill,  and  take  a  new  bond  and 
mortgage  on  the  same  premises  from  McDowell  to  himself. 
The  papers  were  made  out;  but,  before  they  were  executed  and 
delivered,  the  examination  of  the  registry  led  to  the  discovery 
of  Simmon's  mortgage,  of  which  both  Lawrence  and  Wing  had 
notice  before  the  arrangement  between  McDowell  and  Lawrence 
was  consummated.  McDowell's  two  notes,  of  $250  each,  to 
Lawrence,  were  included  in  the  new  bond  and  mortgage.  A 
draft  at  ninety  days  had  previously  been  given  on  Simmons, 
for  one  of  these  notes,  which  draft  was  paid  by  Simmons  when 
it  became  due.  July  23d,  1839,  Lawrence  assigned  the  bond 
and  mortgage  to  Wing.  November  8th,  1839,  McDowell 
executed  the  second  mortgage  to  Simmons. 

D.  A.  JVoMe,  for  complainant  in  cross-bill. 

W'inq  cfc  IfcClelland  and  Joy  &  Porter,  for  complainants 
in  original  bill  and  defendants  in  cross-bill. 

J).  A.  Nolle. 

I.  The  rights  of  Simmons  are  superior  to  those  of  complain- 
ants in  original  bill,  being  prior  rights. 
[*178]      *1.  Lawrence,  it  is  true,  has  his  priority  for  that  part 
of  the  purchase  money  ($250)  which  has  not  been  paid. 
Subject  to  this,  McDowell's  mortgage  to  Simmons,  being  the 
Urst  one  made,  and  being  made  for  money  advanced  in  building 
172 


FIFTH  CIRCUIT,  JUNE,  1843.  179 


Wing  V.  McDowell ;   Simmons  r.  McDowell. 

the  mill  on  the  premises,  was  superior  to  all  subsequent  incum- 
brances. Even  if  no  mortgage  had  been  made,  Simmons  had 
i'in  equitable  lien  for  his  advances. 

>  2.  Tuthill's  mortgage  from  McDowell  cannot  be  held  a  prior 
incumbrance,  in  right,  for  purchase  money.  It  was  given  to 
secure  the  purchase  money  of  another  part  of  the  premises,  and 
although  covering  the  land  mortgaged  to  Simmons,  does  not, 
therefore,  affect  it  in  the  same  way  as  it  does  the  rest. 

3.  Tuthill's  assignees  took  no  better  right  than  he  had  him- 
self, and,  if  they  claim  under  the  mortgage  from  McDowell  to 
Tiithill,  they  must  be  postponed  to  Simmons's  prior  equity.  If 
they  claim  under  the  subsequent  arrangement,  it  was  made 
with  full  and  actual  notice  of  Simmons's  right. 

II.  McDowell's  rights  were  such  as  enabled  him  to  mort- 
(Taire  the  interest  he  obtained  under  his  contract. 

1.  The  vendor  is,  in  equity,  owner  of  the  fee  from  the  date 
of  the  contract;  the  vendee  being  considered  only  as  trustee  for 
him,  till  the  contract  is  completed  by  conveyance.  1  Sudg.  on 
Vend.,  211,  214;  6  J.  C.  R,  398. 

2.  Equitable  rights  may  be  mortgaged  as  well  as  a  legal 
estate.  The  contract  might  have  been  assigned,  and  whatever 
is  the  subject  of  purchase  and  sale  may  be  mortgaged.  2  Story 
Com.  on  Eq.,  289;  Wadsworth  v.  Wendell,  5  J.  C.  R.,  224;  1 
J.  C.  K,  394. 

III.  The  registry  of  Simmons's  mortgage  was  constructive 
notice  to  all  the  world  of  its  existence  and  contents.  1  Story 
Com.  on  Eq.,  392. 

^•This  rule  applies  to  equitable  as  well  as  legal  mort-  [*179] 
crages.    1  J.  C.  Pv.,  394. 

Joy  &  Porter. 

I.  The  mortgage  from  McDowell  to  Simmons  conveyed  no 
interest  in  the  land  described  in  it;  the  fee  being  at  the  time 
in  Lawrence. 

1.  McDowell  might  have  assigned  or  mortgaged  the  contract, 
and  thus  placed  Simmons  in  his  place  with  regard  to  the  prem- 
ises, but  he  could  not  mortgage  more  than  he  possessed.     Sini- 

173 


ISO  CASES  IN  CHANCEEY. 

Wing  p.  McDowell  ;   Simmons  v.  McDowell. 

mons  could  not  foreclose  his  mortgage  as  against  Lawrence. 
And  his  rights  under  the  contract,  if  that  had  been  transferred 
to  him,  would  have  been  subject  to  contain  conditions,  whicli 
must  have  been  complied  with,  before  he  could  claim  its 
benefit. 

2.  The  mortgage  is  a  nullity.  It  does  not  convey,  or  purport 
to  convey,  anything  which  McDowell  possessed. 

3.  This  case  does  not  stand  on  the  same  ground  as  a  mortgage 
of  an  equity  of  redemption.  That  is  an  estate  in  the  land, 
and  not  a  inere  right.  And  here  there  was  not  even  the  right 
until  the  land  was  paid  for. 

II,  The  subsequent  arrangement  cannot  give  Simmons  any 
right,  or  make  good  his  mortgage  which  was  before  a  nullity, 
by  enuring  to  his  benefit, 

1.  The  title  to  the  land  never  having  passed  from  Lawrence 
until  that  arrangement,  and  the  deed  and  mortgage  back  being 
one  transaction,  nothing  can  step  between  them  to  impair  or 
destroy  the  mortgage  security.  In  such  cases  of  instantaneous 
seizin,  neither  judgment,  right  of  dower,  process  of  law,  nor 
any  equity,  can  intervene  to  destroy  the  mortgagee's  priority. 

Where  one,  who  has  not  procured  the  title  to  a  piece  of  prop- 
erty, quit-claims,  mortgages,  or  conveys  in  any  way,  without 
covenants  as  to  title  or  %oarranty,  and  subsequent!}' 
[*180]  *procures  the  title,  it  will  not  enure  to  the  benefit  of  the 
previous  quit-claim,  mortgage,  or  conveyance. 

D.  A.  Noljle,  in  reply. 

I.  The  mortgage  to  Simmons  was  in  all  respects,  in  equity, 
a  good  and  valid  mortgage,  and  conveyed  whatever  right 
McDowell  had  under  the  bond  for  a  deed. 

1.  It  is  of  no  consequence  that  the  contract  was  in  form  a 
penal  bond.  An  assignee  of  such  an  instrument  may  maintain 
an  action  for  specific  performance;  and  the  Court  will  consider 
it  in  the  nature  of  an  agreement. 

2.  McDowell  was  in  possession  of  the  land,  making  valuable 
improvements,  and  entitled  to  retain  it  on  the  performance  of 
certain  conditions.     Most  of  the  conditions  have  been  complied 

174 


FIFTH  CIKCUIT,  JUNE,  1843.  181 

Wing  V.  McDowell ;  Simmons  v.  McDowell. 

\vitli; — all  except  the  payment  of  the  $250  note; — and  even 
tlnis  may  be  fairly  claimed  to  have  been  removed  as  a  lien  on 
the  property,  by  the  final  arrangement,  which  affords  good 
reason  for  supposing  that  McDowell's  personal  responsibility 
was  looked  to  for  payment.  In  equity  then,  he  had  an  interest 
in  the  land. 

3.  The  mortgage  conveyed  whatever  interest  McDowell  had. 
The  case  is  similar  to  that  of  one  who,  having  an  estate  for 
years,  purports  to  convey  one  for  life,  where  the  deed  is  good  so 
fi*r  as  regards  the  estate  which  the  grantor  possessed.  So,  a 
mortgagee  under  a  receiver's  certificate  is  preferred  to  the 
grantee  whose  deed  was  subsequent  to  the  patent. 

II.  As  Simmons  appears  in  the  suit  as  a  defendant  it  is  not 
incumbent  upon  him  to  show  the  same  complete  performance, 
which  would  be  required,  if  he  were  seeking  a  specific  per- 
formance affirmatively.  The  complainants  in  the  original  1)111 
have  no  right  to  have  his  mortgage,  or  the  contract  upon 
which  it  is  based,  set  aside;  because  there  *has  been  a  [*181] 
substantial,  if  not  perfect,  performance  of  the  requisite 
conditions. 

III.  The  validity  of  the  Simmons  mortgage  did  not,  in  equity, 
depend  upon  the  subsequent  deed  to  McDowell.  It  was  a 
valid  mortgage  of  the  land,  upon  the  doctrine  above  referred 
to,  that  the  contract  created  mutual  trusts  in  the  vendor 
and  vendee,  by  which  the  latter  acquired  the  estate  in  the 
land. 

The  Chancellor.  The  rights  of  the  parties  are  the  same 
now,  as  before  the  agreement  was  entered  into  between  Mc- 
Dowell and  Lawrence,  to  cancel  the  Tuthill  mortgage,  and  give 
one  running  directly  to  Lawrence,  in  its  place.  All  parties 
had  notice  of  the  $3,000  mortgage  to  Simmons,  before  the 
change  was  made;  and  what  has  taken  place  since  cannot  affect 
his  rights. 

It  is  said  McDowell  might  have  sold,  or  mortgaged,  his  con- 
tract, but  that  he  had  no  interest  in  the  land  itself,  to  mortiraore, 
the  title  being  in  Lawrence.     At  law,  a  contract  for  the  p)ur- 

175 


183  CASES  m  CHANCERY. 

Wing  V.  McDowell  ;   Siaimons  r.  McDowell. 

chase  of  land  gives  the  vendee  no  interest  in  the  hmd ;  but  the 
rule  is  otherwise  in  equity,  which  considers  the  vendor,  as  to 
the  land,  a  trustee  for  the  purchaser,  and  the  vendee,  as  to  tin 
money,  a  trustee  for  the  seller.     In  equity,  the  land  belongs  t< 
the  vendee,  and  may  be  sold,  devised,  or  encumbered  by  hin: , 
and,  on  his  death,  will  descend  to  his  heirs.    Seton  v.  Slade,  1 
Yes.  R.,  265,  274;  6  Yes.  R.,  353.     Champion  v.  Brown,  6  J. 
C.  R.,  398.     It  must  be  taken,  however,  subject  to  the  rights 
of  the  vendor  under  the  contract.     And,  McDowell  having  ar 
equitable  interest  in  the  land  under  the  contract,  the  mortgage;' 
front  him  to  Simmons  was  an  equitable  mortgage  of  that  equi- 
table interest. 

This  mortgage  was  recorded  on  the  day  it  was  executed,  and 
it  is  insisted  that  the  registry  of  it  was  notice,  to 
[^182]  *both  Tuthill  and  LawTence,  in  their  subsequent  deal- 
ings with  McDowell,  and  w^ith  each  other.  The  registry 
of  a  deed  or  conveyance  required  by  law  to  be  recorded,  when 
properly  registered,  is  notice  to  subsequent  purchasers  of  the 
existence  and  contents  of  such  deed  or  conveyance,  in  equity, 
as  well  as  at  law.  If  an  instrument  should  be  registered,  which 
the  law  does  not  require  to  be  registered,  the  record  of  it  would 
be  notice  to  no  one;  for,  no  person  is  expected,  much  less  bound, 
to  examine  the  registry  for  that  w^hich  has  no  business  to  be 
there.  Our  registry  law,  it  seems  to  me,  has  reference  to  con- 
veyances of  the  legal  estate,  or  interest  in  law,  only,  except 
where  a  trust  is  created,  or  declared,  in  writing,  which,  to  be 
notice  to  subsequent  purchasers,  the  statute  requires  to  be  re- 
corded. The  language  of  the  statute  is:  "  Ko  bargain  and  sale, 
or  other  like  conveyance  of  any  estate  in  fee  simple,  or  for  life, 
and  no  lease  for  more  than  seven  years  from  the  making  there- 
of, shall  be  valid  and  effectual  against  any  other  person  than  the 
grantor,  and  his  heirs  and  devisees,  and  persons  having  actual 
notice  thereof,  unless  it  is  made  by  a  deed  recorded  as  provided 
iu  this  chapter."  R.  S.,  260.  In  Parkist  v.  Alexander,  1  J. 
C  R.,  397,  Chancellor  Kent  thought  the  better  opinion  was, 
that  the  registry  of  an  equitable  mortgage  was  notice  to  a  sub- 
sequent purchaser  of  the  legal  estate.     His  opinion  in  that  case, 

176 


FIFTH  CIRCUrr,  JUNE,  1843.  183 

Wing  V.  McDowell  ;   Simmons  v.  McDowell. 

however,  was  based  on  the  peculiar  phraseology  of  the  registry 
act  itself,  lie  says:  "The  statute  I  have  cited  speaks  of  any 
^  writing  in  the  nature  of  a  mortgage,''  and  these  words  may 
.reach  to  any  agreement  creating  an  equitable  encumbrance." 
The  language  of  our  statute  is  not  so  broad,  and  the  case  of 
.ParVist  V.  Alexander,  consequently,  is  no  authority  that  the 
i-egistry  of  a  mere  equitable  mortgage,  like  the  one  to  Sim- 
vnons,  is,  under  our  statute,  notice  to  subsequent  pur- 
('hasers.' 

*The  mortgage  to  Tuthill  stood  on  the  same  footing  [*183] 
with  that  to  Simmons,  M'ith  this  difference,  that  Sim- 
nions's  mortgage  was  prior  in  time.  They  were  both  liens  on 
McDowell's  equitable  interest  in  the  land,  and  neither  of  them 
■was  an  assignment  of  the  bond  for  a  deed  by  way  of  mortgage. 
ISTeither  Simmons  nor  Tuthill  acquired  any  legal  interest  in  the 
bond;  neither  could  have  sued  Lawrence  for  a  breach  of  its 
condition;  their  interest  was  purely  equitable,  not  legal,  and 
their  remedy  against  Lawrence,  as  well  as  McDowell,  such  as 
could  be  had  in  a  court  of  equity  only.  What  then  were  the 
relative  rights  of  Simmons  and  Tuthill,  under  their  respective 
mortgages?  The  rule  in  equity  on  this  point  is  well  expressed 
by  Chancellor  Walworth,  in  Grimstone  v.  Carter,  3  Paige  E. 
436.  lie  says:  "It  is  the  settled  doctrine  of  the  Court,  that, 
when  the  equities  of  the  parties  are  equal,  and  neither  has  the 
legal  title,  the  one  who  has  the  prior  equity  must  prevail.  Nor 
will  the  Court  permit  the  party  having  the  subsequent  equity 
to  protect  himself  by  obtaining  a  conveyance  of  the  legal  title, 
after  he  has  either  actual  or  constructive  notice  of  the  prior 
equity."  As  between  these  two  mortgages,  then,  Simmons's 
mortgage,  being  prior  in  time,  was  prior  in  right;  and  this 
priority  was  not  destroyed,  or  lost,  by  the  assignment  of  the 
Tuthill  mortgage  to  Lawrence  without  notice  of  the  prior  mort- 
s-ao-e.  Tuthill  had  no  notice  of  the  mortgage  to  Simmons,  w^hen 
he  took  his  mortgage;    and  an  assignment  of  it  to  a  third 

*  The  registry  of  a  similar  mortgage  was  held  not  to  be  notice  to  subse- 
quent purchasers  from  the  mortgagor,  after  he  had  acquired  the  legal  title, 
in  the  case  oF  The  Farmer's  Loan  k  Trust  Co.  r.  Maltby,  8  Paige  R.  861. 
YOL.  I.— 13  177 


184  CASES  IN  CHANCERY. 

Trowlaridge  v.  Harleston. 

person,  without  notice,  could  not  give  the  assignee  a  better 
right  than  Tuthill  himself  had.     L,awrence  acquired  the  right 
of  Tuthill,  and  nothing  more.     There  was  not  a  union  of  the 
legal  estate  and  a  subsequent  equity  in  the  same  right,  for  Law- 
rence held  the  legal  title  in  trust  for  McDowell;    and,  before 
the  agreement  was  consummated  to  cancel  the  Tuthill  mort- 
gage  and  give  another  in  its  place,  when  he  acquired 
[*lS-i]  *the  legal  estate  in  his  own  right,  both  he  and  "Wing 
had  notice  of  the  Simmons  mortgage.     The   English 
doctrine  of  tacking,  which,  perhaps,  would  be  applicable  to 
such  a  case,  has  not  been  adopted  in  this  country.     1  Cainerf 
Ca.  113;  3  Pick.  R.  50 ;  1  Hopk.  R.  234;  4  Kent  Com.  ITS,  179.. 
The  premises  included  in  Simmons's  mortgage  must  be  sold 
separately,  and,  out  of  the  proceeds  thereof,  the  $250  note  given 
by  McDowell  to  Lawrence  for  the  purchase  money,  must  first 
be  paid,  (the  other  note  having  been  paid,)  and  then  Simmons's 
mortgage  for  $3,000;    and  with  the  balance,  if  any,  and  the 
proceeds  of  the  residue  of  the  mortgaged  premises,  the  Law- 
rence mortgage  must  then  be  paid,  and  then  Simmons's  second 
mortgage. 


[*185]  ^Trowbridge  et  al  v.  Harleston  and  Ogden. 

Where  time  has  been  extended  for  the  performance  of  conditions,  a  party 
seeking  to  avail  himself  of  the  extension,  must  allege  a  readiness  to  per- 
form within  the  time  as  extended,  and  notice  thereof.^ 

Where  two  persons  have  a  lien  on  the  same  piece  of  property  which  is  not 
sufficient  to  satisfy  both,  and  one  has  a  Hen  for  his  debt  on  another  piece  of 
property,  he  must  exhaust  the  latter  before  he  can  resort  to  the  common 
fund.2 


1  See  Hammond  v.  Michigan  State  Bank,  post,  214. 

2  See  Mason  v.  Payne,  ^josi,  459  and  note;  Marshall  v.  Moore,  36  111.,  321; 
Dodds  V.  Snyder,  44,  id.,  53. 

178 


FIFTH  CIECUIT,  JUNE,  18^3.  186 

Trowbridge  v.  Harleston. 

\       

\|        This  was  a  hearing  on  pleas. 

Whig,  for  complainants. 

Noble  (&  Backus,  for  defendants. 

The  Chancellor.  The  plea  of  Harleston  must  be  overrnled. 
The  foreclosure  of  the  mortgage  on  the  Cook  farm,  is  not  a  con- 
dition precedent  to  the  foreclosure  of  the  mortgage  on  the 
Fiohert  farm. 

A  specihc  execution  of  the  agreement  of  August  31st,  1839. 
would  not  now  be  decreed;  the  extension  of  credit  whicli 
Harleston  was  to  have  under  it  having  already  expired.  By 
the  agreement  of  September  2d,  1839,  Harleston  w?lk  to  have 
sixty  days  from  that  time,  to  perform  the  agreement  made  in 
August;  and  the  plea  does  not  aver  a  readiness  to  perform 
within  the  sixty  days,  and  notice  thereof  to  complainants,  or 
the  bank. 

Ogden's  plea  stands  on  different  ground.  It  alleges  the  Cook 
farm  is  valuable,  and  will  bring  enough  to  pay  the  principal 
part  of  complainants'  mortgage  on  tlie  Robert  farm,  over  and 
above  all  other  debts  the  complainants  or  bank  have  against 
Harleston;  and  that  the  Robert  farm  is  insufficient  to  satisfy 
both  his  and  complainants'  mortgage.  The  plea  must, 
therefore,  be  allowed,  on  the  equitable  *ground  that,  [*186] 
where  two  j)ersons  have  a  lien  on  the  same  piece  *of 
property,  which  is  not  sufficient  to  satisfy  both,  and  one  of  them 
has  also  a  lien  for  his  debt  on  another  piece  of  property,  he 
must  exhaust  his  lien  on  the  latter,  before  he  resorts  to  the 
property  on  which  both  have  a  lien.  Hopk.  R.,  460.  Harles- 
ton is  insolvent. 


179 


187  CASES  m  CHAI^CEEY. 


De  Armand  v.  Phillips. 


JoHisT  De  Aemand  v.  John  Phillips. 

When  a  party  is  entitled  to  rescind  a  contract,  he  should  act  promptly  and  not 
sleep  on  Ms  rights,  or  take  time  to  speculate  on  the  course  of  events.  If 
he  goes  on,  with  a  full  knowledge  of  his  rights,  recognizing  the  contract 
as  still  in  force,  and,  by  his  acts  and  conduct,  tacitly  gives  his  assent  to  its 
execution  in  a  manner  different  from  the  original  understanding  of  the 
parties,  he  is  not  entitled  in  equity,  to  have  either  the  contract  rescinded, 
or  any  relief  inconsistent  with  what  may  fairly  and  reasonably  be  pre- 
sumed, from  his  own  acts,  to  have  been  assented  to  by  him.^ 

This  was  a  bill  for  specific  performance. 

The  biir  states  that  complainant  owned  a  farm  in  Bertrand, 
Berrien  county,  Michigan,  in  the  south  half  of  the  southeast 
fractional  quarter,  of  fractional  section  eighteen,  town  eight, 
south  of  range  eighteen  west,  containing  eighty  acres.  That, 
being  desirous  of  adding  thereto,  for  his  convenience  as  a 
farmer,  he,  in  February,  1839,  negotiated  with  defendant 
for  the  purchase  of  an  undivided  forty-five  acres  of  an 
adjoining  tract  lying  south  of  his  farm,  in  which  tract 
defendant  pretended  to  have  an  equal  interest  in  fee 
simple,  in  common  with  E.  Thomas,  as  evidenced  by  a 
certificate  from  the  land  oflice  at  Kalamazoo,  No.  23,737. 
That  the  ^tract  is  the  east  half  of  fractional  section  num- 
bered nineteen,  in  town  eight,  south  of  range  eighteen 
[*187]  ''^west,  in  Berrien  count}",  containing,  according  to  the 
United  States  survey,  two  hundred  and  five  acres,  and 
eighty-five  hundredths  of  an  acre.  That  the  result  of  the 
neo-otiation  was  a  purchase  in  fee  simple,  of  forty-five  acres  of 
the  undivided  interest  of  defendant  in  that  tract,  for  eight 
hundred  dollars,  payable  in  installments.  That  defendant 
agreed  to  convey  in  fee  simi^le,  on  May  1st,  1839,  forty-five 
acres  of  his  undivided  interest,  and  also  that,  when  partition 
should  be  had,  complainant  should  have  his  forty-five  acres  set 

1  See  Wilbur  v.  Flood,  16  Mich.,  40;  Martin  v.  Ash,  20  id.,  166;  Schwarz  v. 
Wendell,  post,  268. 

180 


THIRD  CIRCUIT,  JUNE,  18i3.  ISS 

De  Armand  v.  Phillips. 

off,  in  fee  simple,  adjoining  his  farm,  at  the  cost  and  expense 
of  defendant.  That,  on  February  11th,  1839,  complainant  and 
defendant  went  to  J.  G.  Anies,  a  justice  of  the  peace,  to  have 
the  agreement  reduced  to  writing.  They  stated  the  terms  of 
it  to  Ames,  who  drew  up  articles  of  agreement  which  were 
then  executed,  and  delivered  to  Benjamin  Redding  for  safe 
keeping.  The  bill  sets  out  the  substance  of  the  agreement, 
and  that  complainant  was  to  have  his  forty -five  acres  set  off 
next  to  his  farm,  if  the  arbitrators  should  so  award. 

That,  by  a  mistake  of  Ames,  the  written  agreement  aoes  not 
conform  to  or  agree  with  the  instructions  given  him,  in  that  it 
does  not  describe,  fitly  and  accurately,  the  tract  of  land  in 
which  complainant  purchased  an  interest  Avhich  he  avers  was 
forty-five  acres  of  defendant's  equal  undivided  interest  in  and 
to  the  east  half  of  fractional  section  nineteen,  instead  of  the 
southeast  quarter  of  said  section.  IN^or  does  it  conform  to  the 
instructions  in  properly  expressing  the  agreement  that,  in  the 
partition,  complainants  should  have  set  off  in  fee  simple,  at 
the  expense  of  Phillips,  forty -five  acres  from  the  north  side  of 
the  track  adjoining  complainant's  farm  on  the  south.  That,  to 
obtain  partition  at  law  prior  to  the  time  designated  by  the 
agreement,  Phillips  consented  to  execute  a  deed,  and,  on  Feb- 
ruary 27th,  1839,  he  did  execute,  with  his  wife,  a  deed 
of  ■^bargain  and  sale  of  fifty-five  acres  of  his  undivided  [*188] 
interest  in  the  east  half  of  fractional  section  nineteen, 
town  eight  south,  of  range  eighteen  west,  being  the  same  prem- 
ises mentioned,  or  intended,  in  the  articles  of  agreement.  The 
bill  sets  out  the  covenants  in  the  deed,  and  avers  that  com- 
plainant has  paid  all  the  purchase  money  but  $250  embraced 
in  a  note,  on  which  suit  had  been  brought,  and  was  at  issue. 
That  complainant,  since  the  making  of  the  deed,  has  discovered 
that  when  the  deed  was  made,  defendant  did  not  make  a  good 
title.  That  the  title  is  still  in  the  United  States;  that  no  valid 
certificate  or  patent,  or  other  evidence  of  title,  has  ever  issued 
from  the  United  States  to  defendant,  or  any  one  else,  for  said 
premises  or  any  part  thereof;  that  certificate  No.  23,737  is 
invalid,  erroneously  issued,  and  declared  to  be  so  by  the  United 

181 


1S9  Cx\SES  m  CHANCERY 


De  Armand  v.  Phillips. 


States.  That  Thomas  is  a  separate  purchaser  of  one  hundred 
and  sixty  acres  of  said  east  half  of  fractional  section  nineteen, 
lying  in  the  form  of  a  regularly  surveyed  quarter  section ;  and 
Phillips  is  a  separate  purchaser  from  the  United  States  of  the 
remainder  of  said  east  half,  containing  forty-five  acres  and 
eighty-five  hundredths  of  an  acre,  having  as  its  north  bound- 
ary line  the  south  line  of  Thomas's  quarter  section.  That 
neither  Thomas  nor  defendant  has  yet  taken  any  certificate  or 
other  evidence  of  title  to  said  tract  so  purchased  by  them. 
That,  about  February  2J:th,  18-iO,  Thomas  quit-claimed  to 
Phillips  in  fee,  all  his  title  and  interest  to  the  south  half  of 
said  east  half  of  fractional  section  nineteen,  containing  one 
hundred  and  two  acres  and  ninety-two  hundredths  of  an  acre. 
And,  since  the  making  of  said  warranty  deed  of  defendant  to 
complainant,  Phillips  quit-claimed  his  interest  in  fee  in  the 
same  tract  to  Thomas. 
That  after  complainant  discovered  defendant's  want  of  title, 
he  entered  into  possession  with  defendant's  assent, 
[*189]  *and  consented  temporarily  to  occupy  and  cultivate, 
and  has  so  occupied  and  cultivated  forty-five  acres  next 
adjoining,  on  the  south,  the  south  half  of  said  east  half  of 
frational  section  nineteen,  the  said  forty-five  acres  being  part 
of  said  quarter  section  purchased  by  Thomas,  and  part  of  that 
which  Thomas  quit-claimed  to  defendant.  That  complainant 
has  expended  large  sums  in  improvements,  with  defendant's 
consent,  and  has  always  been  ready  to  pay  on  receiving  a  mark- 
etable title. 

Prays  for  specific  performance  by  defendant  of  his  agreement, 
and  that  he  may  make  a  good  title;  or  else  refund  what  has 
been  paid  for  purchase  and  improvements. 

The  defendant's  answer  admits  that  complainant  occupied 
the  farm  mentioned  in  the  bill,  and  that,  in  Febraary,  1839,  he 
applied  to  defendant  to  purchase  an  undivided  interest,  amount- 
ing to  forty-five  acres,  in  the  adjoining  tract.  States  that  this  ' 
tract  (of  defendant  and  Thomas)  was  originally  known  as  the 
east  half  of  a  fraction  numbered  nineteen,  town  eight  south,  of 
range  nineteen  west,  containing  but  two  hundred  and  five  acres 
182 


THIRD  CIRCUIT,  JUNE,  1843.  190 

De  Armand  v.  Phillips. 

and  eighty -five  hundredths  of  an  acre,  and  was  surveyed  as  one 
legal  subdivision  equivalent  to  a  quarter  section,  and  was, 
entered  jointly  by  defendant  and  E.  Thomas,  at  Kalamazoo, 
where  they  received  certificate  No.  23,737,  dated  September 
:29th,  1838.  Admits  he  knew  complainant's  object  in  purchas- 
ing from  him,  and  that,  on  the  eleventh  day  of  February, 
1839,  Ames  drew  up  the  articles  of  agreement  set  forth  in  the 
bill.  That,  after  the  agreement  was  made,  defendant  and 
Thomas  were  notified  of  an  alteration  in  the  survey,  and  that, 
unless  defendant  and  Thomas  lived  on  the  distinct  quarter,  they 
could  not  jointly  hold,  but  one  would  have  the  quarter,  and  the 
other  the  fraction.  That,  in  fact,  Thomas  lived  on  the  quarter, 
and  defendant  on  the  fraction,  but  defendant  had  ad- 
vanced an  equal  amount  '"'of  ]>urcliase  money  for  the  ['"190] 
whole,  supposing  they  could  jointly  hold,  and  he  was, 
therefore,  ecjuitably  entitled  to  half  of  the  premises.  That  this 
information  was  communicated  to  complainant.  Admits  the 
quit-claim  deeds  between  defendant  and  Thomas,  dated  Feb- 
ruary 26th,  1810,  the  nominal  consideration  being  one  hundred 
dollars,  but  the  real  one  being  the  facts  above  stated.  Thomas 
<|uit-claimed  to  defendant  all  his  interest  in  the  south  half  of 
the  east  half  of  fractional  section  nineteen,  it  beino:  the  half  of 
said  east  half  lying  south  of  an  east  and  west  line  drawn 
through  it  parallel  to  the  Indiana  state  line,  and  being  the 
south  half  of  the  land  held  by  Thomas  and  defendant  jointly 
l)y  duplicate,  &c.  Defendant  quit-claimed  to'  Thomas  the 
north  half  of  said  premises.  That  both  these  deeds  were  made 
with  the  advice  and  consent  of  complainant,  who  is  a  subscrib- 
ing witness  to  one  or  both  of  the  deeds,  and  who  also  advanced 
money  to  pay  for  effecting  this  agreement,  and  to  pay  counsel. 
Admits  that  defendant  made  the  deed  to  complainant  as  set 
forth  in  the  bill,  with  covenants,  &c.  Says  this  deed  was  made 
at  the  urgent  request  of  complainant,  and  to  enable  him  to 
effect  partition.  That  the  deed  was  not  fully  read  or  under- 
stood by  defendant,  but  he  was  informed  the  same  was  consist- 
^  ent  with  his  title,  and  took  an  agreement  from  complainant  and 
Ames,  to  indemnify  him  against  any  damage  that  miglit  ensue 

183 


191  CASES  m  CHxiKCERY. 

De  Armancl  iK  Phillips. 

on  giving  sncli  a  deed.  Insists  thjit  the  duplicate  is  valid  to 
sustain  a  quit-claim  deed,  and  that  the  title  enures  to  the  com- 
plainant under  the  warranty  deed.  Admits  that  no  patent  or 
new  certificate  was  taken  out,  but  insists  there  was  no  necessity'- 
for  any.  Admits  that,  after  the  quit-claim  deeds,  complainant 
entered  on  forty-five  acres,  on  the  south  half  of  the  quarter 
section  conveyed  by  Thomas  to  defendant,  and  that  complain- 
ant had  full  knowledge  of  all  the  facts  touching  the 
[^191]  '"premises  and  the  title  in  question,  and  says  this  entry 
was  made  and  occupation  had,  under  and  by  virtue  of 
a  parol  agreement  and  partition  by  and  between  defendant  and 
complainant.  That  complainant  agreed  to  take  his  forty-five 
acres  from  the  south  half  of  said  quarter  section,  and,  in  pur- 
suance of  this  agreement,  defendant  set  off  to  him,  by  admeas- 
urement, his  forty -five  acres,  which  he  has  entered  upon  and 
still  occupies  under  his  deed  and  the  parol  partition. 

Denies  that  defendant  ever  deceived  complainant  concerning 
his  title,  or  that  any  lands  except  those  mentioned  in  the  du- 
plicate were  ever  spoken  of  between  them,  and  says  that  refer- 
ence was  particularly  had  to  the  land  afterwards  included  in  the 
separate  quarter.  Denies  that  there  was  any  mistake  in  the 
agreement  executed,  or  any  fraud  in  relation  to  it,  but  says  the 
premises  were  mentioned  and  located  so  as  best  to  ascertain  the 
portion  which  the  complainant  wished  to  obtain,  with  a  view 
to  partition.  The  agreement  was  fairly  read  to  complainant, 
and  fully  expresses  the  intention  of  the  parties.  It  was  never 
understood  that  defendant  should  guaranty  the  forty-five  acres 
to  be  set  off  next  to  complainant's  farm,  or  that  the  payment 
was  to  depend  upon  such  contingency.  Denies  that  the  bar- 
gain w^as  different  from  the  agreement  executed. 

Denies  that  defendant  agreed  to  bear  the  cost  of  partition,  or 
that  he  obtained  a  higher  price  on  account  of  any  such  agree- 
ment, or  that  he  agreed  complainant  should  certainly  have  the 
forty -five  acres  next  to  his  farm.  Says  that  complainant  under- 
stood the  whole  matter,  and  calculated  the  chances  of  his  ob- 
taining the  desired  location.  Denies  that  complainant  was  not 
fully  informed  of  all  the  facts,  at  the  time  of  taking  the  deed. 
184 


THIRD  CirwCUIT,  JUXE,  1843.  192 

Do  Armand  v.  Phillips. 

Says  that  defendant  was  inclined  to  defer  ^ivin^  the  deed, 
and  to  rescind,  ^^but  compkiinant  insisted  on  having  the  ["192J 
deed.  Denies  that""  the  duplicate  was  or  is  invalid,  or 
erroneously  issued  so  as  to  render  the  same  void  or  voidable,  or 
tliat  it  has  been  invalidated,  recalled,  or  avoided,  by  the  United 
States,  any  further  than  the  fraction.  Submits  that  the  certifi- 
cate was  good  to  Thomas,  especially  after  the  release  be  defend- 
ant, so  that  no  new  certificate  was  necessary.  Denies  that 
complainant  has  expended  much  money;  denies  encumbran- 
ces, and  submits  that  defendant  has  complied  with  his  agree- 
ment. 

Complainant  filed  a  general  replication. 

V.  L.  Bradford^  for  complainant. 

I.  The  defendant  has  failed  to  perform  the  agreement  made 
with  complainant,  and  the  Court  will  therefore  grant  such  relief 
as  is  meet. 

1.  He  has  failed  to  give  the  complainant  a  legal  title  to  any 
portion  of  the  land.  He  had  no  title  whatever,  legal  or  equi- 
table, in  the  quarter  section,  which  belonged  to  Thomas,  until 
the  quit-claim  from  Thomas  to  him.  He  has  never  obtained  a 
legal  title,  and  it  is  questionable,  from  the  facts  of  the  case, 
under  the  pre-emption  laws,  whether  he  has  even  an  equitable 
title. 

2.  The  patent  for  the  quarter  section  can  issue  to  no  one  but 
Thomas. 

3.  He  has  not  obtained  for  complainant  the  precise  land 
specified. 

II.  Complainant  has  done  no  act  amounting  to  a  waiver  of 
his  rights,  and  nothing  has  happened  which  could  prevent  his 
right  to  relief. 

1.  No  act  of  waiver  took  place  in  the  transactions  between 
defendant  and  Thomas,  and  com]ilainant  lost  no  right  by  being 
a  witness  and  acquiescing  in  defendant's  deed  to  Thomas,  be- 
cause that  deed  conveyed  no  title. 

*2.  Even  if  that  conveyance   had   been  effectual,  it  ["^193] 
would  have  created  no  waiver.     Such  waiver  must  be 
exjpress.  185 


194  CASES  IN  CHAXCERY. 

De  Armand  v.  Phillips. 

3.  There  was  no  valid  cojisideration  for  a  waiver,  and  sncli 
consideration  was  necessar3^ 

■i.  The  complainant  had  a  right,  without  relinquishing  his. 
claim  to  damages,  to  assent  to  any  act  by  which  Phillij^s  would' 
be  enabled  to  perform  any  j)art  of  his  agreement. 

5.  Complainant's  possession  and  occupation  of  the  forty-five 
acres,  was  no  waiver.  First.  Because  the  parties  still  consid- 
ered the  agreement  of  February,  1839,  binding,  and  the  occu- 
pation was  meant  to  be  only  temporary.  Secondly.  Because, 
such  parol  partition  is  contrary  to  the  statute  of  frauds. 
Timidly.  Because  defendant  can  make  no  legal  title  to  the 
lands. 

6.  Tlie  agreement  of  complainant  and  Ames,  with  defendant, 
not  being  under  seal,  did  not  release  the  covenants  in  defend- 
ant's deed.     There  was  also  no  sufficient  consideration. 

III.  As  to  what  relief  complainant  is  entitled  to. 

1.  He  is  entitled  to  a  specific  performance  of  the  whole  con- 
tract. To  enable  the  Court  to  decree  a  specific  performance 
against  a  vendor,  it  is  not  necessary  that  he  should  have  the 
legal  estate;  for,  if  he  has  an  equitable  title,  a  performance  in 
specie  will  be  decreed,  and  he  must  obtain  the  concurrence  of 
the  person  having  the  legal  estate.  The  vendor  is  considered 
a  trustee  for  the  purchaser. 

2.  A  court  of  equity  will  compel  a  vendor  to  a  specific  per- 
formance for  a  part  of  the  land,  where  he  has  incapacitated 
himself  from  conveying  the  whole. 

3.  For  the  residue  he  will  be  entitled  to  damages.  Equit}^ 
is  sometimes  done  between  the   parties  on.  the   principle  of 

compensation,  for  deficiency  in  quantity  or  quality,  &c. 
[*194]  ■^Or,  a  compensation  in  damages  foi-  the  A^'hole  may  be 

given,  to  be  ascertained  by  reference  to  a  Master.  It  is 
true,  generally,  that  a  purchaser  may  take  wliar.  he  can  get, 
with  compensation  for  what  he  cannot  have. 

Green  <&  Dana,  for  defendant. 
C.  Dana. 

I.  There  was  no  fraud  or  misrepresentation  on  tlie  part  of 
186 


TlIIllD  CniCUIT,  JUNE,  1S43.  19; 


De  Armand  v.  Phillips. 


defcndaitt.     The  bill  is  proved  to  be  false  in  several  particulars, 
and  the  maxim, /«Z6'ms  i?i  uno^falsus  in  otimibus,  applies, 

II.  There  was  no  mistake  in  the  agreement  of  the  parties, 
and  no  mistake  in  the  manner  in  which  defendant  and  Tliomas 
obtained  pre-emption.  The  difficulty  arose  from  an  act  of  the 
United  States  government,  viz:  a  new  division  of  the  land,  on 
.a  new  construction  of  the  law.  And  a  mistake  in  regard  to  the 
law,  does  not  entitle  a  man  to  relief,  either  in  law  or  equity. 

III.  All  the  relief  to  which  the  complainant  might  have  had 
pretense,  on  learning  the  new  action  of  the  United  States,  was, 
by  his  subsequent  voluntary  acts,  waived,  abandoned,  and  dis- 
charged by  him. 

1.  He  procured  a  quit-claim  deed  from  Thomas  to  defendant, 
at  defendant's  expense  of  $100,  in  addition  to  what  he  paid  at 
the  land-office. 

2.  He  paid  the  defendant  afterwards,  voluntarily,  $250,  and 
has  occupied  the  land  in  severalty,  nearly  three  years. 

This  Court  will  relieve  against  a  clear  case  of  mistake  or 
fraud,  but  never  against  the  voluntary  acts  of  the  party. 

lY.  There  is  no  failure  of  consideration.  The  complainant 
has  a  warranty  deed,  and  there  has  been  no  eviction  by  para- 
mount title.  There  is  no  fraud  shown,  and  therefore  there  is  no 
ground  for  asking  relief. 

*y.  Defendant  is  entitled  to  a  decree  for  the  amount  [^195] 
of  his  note  for  $250,  given  May  1,  1841,  and  interest 
and  costs,  as  indemnity  for  the  delay  to  which  has  been  sub- 
jected by  this  bilL 

The  Chancellor.  In  September,  1838,  the  defendant,  and 
one  Ezekiel  Thomas,  purchased  at  the  land  office  at  Kalamazoo, 
the  east  half  of  fractional  section  nineteen,  town  eight  south, 
of  ran^e  eighteen  west,  containing  two  hundred  and  five  acres 
and  eighty -five  hundredths  of  an  acre,  under  an  act  to  grant 
pre-emption  rights  to  settlers  on  the  public  lands,  passed  by 
Congress  that  year,  and  took  a  certificate  from  the  receiver  of 
the  land-office,  of  the  payment  of  the  money.  The  certificate 
described  the  land  as  the  north  half  of  the  northeast  quarter, 

387 


196  CASES  m  CHANCERY. 

De  Anuand  r.  Phillips. 

and  lots  numbered  one  and  two,  of  section  nineteen,  tpwn  eight 
south,  of  range  eighteen,  west.  Complainant  owned  a  farm  of 
eighty  acres,  adjoining  the  tract  on  the  north,  and,  being  de- 
sirous of  enlarging  his  farm,  on  February  11th,  1839,  entered 
into  a  written  contract  with  defendant  for  the  purchase  of  forty - 
iire  acres  of  his  undivided  half,  for  which  he  was  to  pay  $800 ; 
— §300  on  the  first  of  May  following,  when  a  deed  was  to  be 
given,  $250  on  May  1st,  1840,  and  a  like  sum  May  1st,  1841. 
By  the  contract,  defendant  agreed  that  complainant  should  have 
his  forty -five  acres  next  to  his  farm,  "provided  the  arbitrators 
should  so  award  it."  On  the  first  of  March,  instead  of  the  first 
of  May,  at  the  urgent  solicitation  of  complainant,  defendant 
and  wife  executed  a  warranty  deed  to  him  for  his  forty-fivii 
acres.  Defendant,  at  first,  refused  to  execute  the  deed,  on  the 
ground  a  patent  had  not  then  been  obtained  for  the  land;  and, 
to  induce  him  to  execute  it,  complainant  and  one  Joseph  G. 

Ames  agreed  in  writing  to  stand  between  him  and  all 
[*196]  harm,  and  "to  pay  ail  Mamages  he  might   sustain  by 

reason  of  any  illegal  right  to  convey  by  deed  his  inter- 
est, or  any  part  thereof,  by  a  warranty  deed."  The  bill  charges 
there  was  a  mistake  made  in  drawing  the  contract,  but  this  is 
disproved,  both  by  the  answer,  and  tlie  testimony  of  Ames, 
who  drew  up  the  contract.  Up  to  tlie  execution  of  the  deed  on 
the  first  of  March,  and,  I  may  say,  throughout,  for  aught  I  can 
discover  to  the  contrary,  the  defendant  dealt  fairly  and  honestly 
with  complainant.  There  was  no  fraud,  no  misrepresentation 
or  concealment  of  his  interest  in  the  land;  and  complainant 
was  aware  of  all  the  facts  and  circumstances  relating  to  the 
title,  as  fully  as  defendant  himself.  He  kuew  defendant  and 
Thomas  resided  on  difierent  parts  of  the  land;  that  they  claimed 
it  jointly  under  the  pre-emption  act  of  1838,  and  that  they  had 
jDroved  their  claim,  paid  their  money,  and  rightfully  obtained  a 
certificate  from  the  receiver  at  the  proper  land-ofiice.  He  also 
knew  he  must  run  the  risk,  when  the  land  was  divided,  of  hav- 
ing his  forty-five  acres  set  off  adjoining  his  farm.  Defendant 
liad  given  his  consent  to  such  a  partition,  but  he  had  gone  no 
further;  he  had  not  agreed  Thomas  should  assent  to  it.     He 

188 


TIIIED  CIRCUIT,  JUNE,  lSi3.  197 

De  Annand  r.  Phillips. 

was  boimd  to  give  a  deed  in  May,  at  wliicli  time,  in  all  proli- 
alMlity,  he  expected  that  he  and  Thomas  would  be  in  pos^session 
(»f  the  patent;  for,  when  he  was  applied  to  for  a  deed,  in  Feb- 
rnary,  he  refused  to  give  it  until  he  was  indemnified,  aa  above 
stated.  Soon  after  the  deed  was  executed  and  delivered,  prob- 
;ably  in  April,  as  appears  from  the  testimony  of  Everett,  defend- 
iint  and  Thomas  received  a  notice  from  the  land-office  that  the 
fsurveyor  general  had  altered  the  survey  of  the  section,  by 
dividing  the  east  half  of  it  into  a  distinct  quarter,  with  a  frac- 
tion on  the  State  line  between  Michigan  and  Indiana,  and  that, 
if  they  both  resided  on  the  quarter,  they  could  hold  it 
jointly;  but,  if  one  resided  on  the  quarter,  and  the  *otlier  ['^'lOT] 
on  the  fraction,  each  could  take  the  one  on  which  he  re- 
sided. Thomas,  in  fact,  resided  on  the  quarter,  and  defendant 
on  the  fraction.  This  alteration  of  the  original  survey  is  what 
has  probably  given  rise  to  this  suit. 

Thomas  and  defendant  had,  in  good  faith,  taken  the  land 
jointl}'-,  each  advancing  one-half  of  the  purchase  money;  and, 
after  the  alteration  was  made,  neither  could  take  the  part  to 
which  he  was  entitled  under  it,  without  first  annulling  the 
agreement  by  which  they  had  taken  the  land  together.  !N^or, 
even  then,  could  defendant  take  the  fraction,  until  the  contract 
and  deed  between  him  and  complainant  were  also  annulled; 
the  pre-emption  law  requiring  the  claimant  to  take  an  oath 
that  he  had  not  directly,  or  indirectly,  made  any  agreement  or 
contract,  in  any  way  or  manner,  with  any  person  or  persons 
whatever,  whereby  the  title  which  he  might  acquire  should 
enure  to  the  use  or  benefit  of  any  one  except  himself,  or  to  con- 
vey or  transfer  the  land,  or  the  title  which  he  might  acquire  to 
the  same  to  any  other  person  or  persons,  at  au}^  subsequent 
time.  Laws  U.  S.,  vol.  9,  p.  801.  To  obviate  this  difficnlty, 
as  it  would  seem,  for  the  parties  had  dealt  with  each  other  in 
good  faith,  and  had  intended  no  violation  of  the  pre-emption 
act,  Thomas  and  defendant  held  on  to  the  receiver's  certificate 
of  September,  1838,  and  afterwards,  on  February  26,  1840,  exe- 
cuted mutual  quit-claim  deeds  to  each  other,  Thomas  quit- 
claiming the  south  half  of  the  land  to  defendant,  and  defendant 

189 


198  CASES  IN  CIIANCEEY. 

De  Armand  v.  Phillips. 

the  north  lialf  to  Thomas,  This  was  done  with  the  approba- 
tion and  consent  of  complainant,  who  was  a  witness  to  the  deed 
from  Thomas  to  defendant,  and  advanced  the  latter  money  to 
enable  him  to  bring  about  the  arrangement.  Chipman,  in  his 
testimony,  says  lie  acted  as  defendant's  connsel  in  procuring  the  ' 
quit-claim  deed  from  Thomas;  that  Thomas  at  first  re- 
[*19S]  fused  to  execute  one,  but  afterwards  ^consented,  on  being- 
paid  $75;  that  complainant  came  with  defendant  to- 
get  the  deed  drawn;  and  that  he  advanced  the  $75  to  pay 
Thomas,  and  accepted  an  order  for  $25  drawn  on  him  by  de- 
fendant, in  favor  of  witness  for  his  services,  which  he  afterwards 
paid.  He  also  understood  the  object  of  the  deed  was  to  enable 
defendant  to  make  a  conveyance  of  a  part  of  the  land  to  com- 
plainant, and  that  the  money  advanced  was  a  part  of  the  pur- 
chase money,  in  the  bargain  for  the  land  between  complainant 
and  defendant. 

Long  before  this,  and  after  he  had  become  acquainted  with 
all  the  facts  in  regard  to  the  I'eceiver's  certificate,  and  defend- 
ant's title  under  it,  complainant  took  possession  of  forty -five 
acres  of  the  land,  it  being  the  north  part  of  the  south  half  sub- 
sequently quit-claimed  by  Thomas  to  defendant.  The  bill  and 
answer  disagree  as  to  the  character  of  this  possession.  Com- 
plainant says  he  took  possession  with  the  assent  of  defendant, 
and  with  a  view  to  occupy  and  cultivate  it  temporarily  only, 
whereas  the  defendant  says  it  was  under  a  parol  agreement  be- 
tween them  for  a  partition  of  the  land.  No  part  of  the  $800 
had  been  paid  when  defendant  was  notified  of  the  alteration 
of  the  original  survey,  and  the  effect  it  would  have  on  the  cer- 
tificate. This  was  the  last  of  March,  or  forepart  of  April,  pre- 
ceding the  first  of  May,  when  $300  was  to  be  paid,  and  I  am 
inclined  to  believe,  from  the  evidence,  that  complainant  was  in 
possession  of  all  the  facts,  before  the  $300  was  paid.  However 
that  may  be,  it  appears  he  was  in  possession  of  them  long  before 
the  $250,  falling  due  in  May,  1840,  was  paid  by  him. 

If  complainant  was  entitled  to  any  relief  in  equity,  it  was 
to  have  the  contract  between  him  and  defendant  rescinded, 
and    defendant's    deed    to    him    cancelled,    on  learning  the 

190 


SECOND  CIECUIT,  JULY,  1843.  199 

Thaj'er  v.  Lane. 

action  of  the  government  on  the  land-office  *certifi-  [*19D] 
cato.  Tliis  he  would,  probahly,  have  been  entitled  to, 
on  the  ground  of  mutual  mistake,  as  both  parties  had  a 
right  to  suppose,  when  the  contract  was  entered  into,  and  the 
deed  given,  that  a  patent  would  be  issued  in  accordance  with 
the  receiver's  certificate.  But  he  has  clearly  waived  this  right 
by  his  subsequent  conduct,  and  tacitly,  at  least,  agreed  to  take 
his  forty-five  acres  in  the  south  half  of  the  land,  to  which  the 
defendant  had  an  equitable  title,  with  the  legal  title  in  the  gov- 
erment;  and  to  rely  on  the  defendant's  warranty  of  that  title, 
•and  the  strong  probability  there  was  that  government  would 
not  molest  him  in  the  enjoyment  of  the  property,  as  a  protec- 
tion against  the  legal  title.  When  a  party  is  entitled  to  rescind 
a  contract,  he  should  act  promptly,  and  not  sleep  on  his  rights, 
or  take  time  to  speculate  on  the  course  of  events.  If  he  goes 
on,  with  a  full  knowledge  of  his  rights,  recognizing  the  con- 
tract as  still  in  force,  and  by  his  acts  and  conduct  tacitly  gives 
his  assent  to  its  execution,  in  a  manner  different  from  the 
original  understanding  of  the  parties,  he  is  not  entitled,  in 
equity,  to  have  either  the  contract  itself  rescinded,  or  any  relief 
inconsistent  with  what  may  fairly,  and  reasonably,  be  pre- 
sumed from  his  own  acts  to  have  been  assented  to  by  him. 
Bill  dismissed,  with  costs  to  defendant. 


*  Charles  Thayer  et  al,  v.   Charles  W.  ['-=200] 
Lane  et  al. 

An  administratoi- appointed  in  another  State  has  no  interest  in  the  real  or  per- 
sonal property  of  his  intestate  here.  Nor  has  an  administrator  appointed 
in  this  State  any  interest  in,  or  authority  over,  real  estate,  unless  the  per- 
sonal property  of  the  deceased  is  insufficient  to  pay  his  debts,  and  then  he 
can  only  dispose  of  it  after  express  permission  given  by  the  judge  of  pro- 
bate, on  application  made  for  that  purpose.' 

'As  to  the  right  of  possession  of  the  land  of  the  deceased,  see  Comp. 

191 


200  CxVSES  IX  CHANCEKY 


Thayer  v.  Lane. 


No  decree  will  be  entered  against  an  infant  on  a  bill  taken  against  him  as 
confessed,  or  on  the  answer  of  his  guardian  ad  litem,  admitting  the  facts 
stated  in  the  biU.  The  answer,  in  such  case,  is  regarded  as  a  pleading 
merely,  and  cannot  be  used  as  evidence  for,  or  against,  the  infant,  against 
whom  the  complainant  must  prove  his  case.^ 

In  equity,  as  between  partners  themselves,  real  estate  purchased  by  them  with 
partnership  effects,  is  partnership  property,  and,  on  the  dissolution  of  the 
firm,  should  be  divided  as  such,  each  party  taking  the  same  share  in  it  as 
in  the  personal  property,  unless  at  the  time  of  the  purchase  it  was  under- 
stood to  be  an  individual  and  not  a  partnership  transaction.'' 

A  partition  will  be  decreed  according  to  the  equitable  rights  of  the  parties. 
But,  to  enable  the  Court  to  make  such  decree,  their  equitable  rights  should 
appear  from  the  pleadings. 

The  relief  given  by  the  Court  must  be  consistent  with  the  case  made  by  the 
biU.3 

This  was  a  bill  for  a  partition  of  land. 

It  is  unnecessary  to  state  the  pleadings  and  testimony  in  the 
cause,  as  they  will  appear  in  the  opinion  of  the  Court. 

Laws,  1857,  §  2904;  Comp.  Laws,  1871,  §  4407;  Streeter  v.  Paton,  7  Mich.  341; 
Marvin  v.  Schilling,  12  id.,  356;  KUne  v.  Moulton,  11  id.,  370;  19  id.,  116; 
Holbrook  r.  Campau,  22  id.,  288:  Campau  v.  Campau,  25  id.,  127. 

^See  Chandler  v.  McKinney,  6  Mich.,  217;  Smith  v.  Smith,  13  id.,  258; 
Waugh  V.  Robbins,  33  111..  182;  Hitt  v.  Ormsbee,  12  id.,  166;  Hamilton  v.  GH- 
man,  id.,  266;  Tuttle  v.  Garrett,  16  id.,  354;  Reddick  v.  State  Bank,  27  id.,  148; 
Ma&terton  r.Wiswoukl,  18  id., 48;  Carrt'.  Fielden,  id.,  77;  Peak  v.  Pricer,  21  id., 
164,  withdrawal  of  plea;  Tibbs  v.  Allen,  27  id.,  129;  Chaffin  v.  Kimball,  23  id., 
86;  Cost  V.  Rose,  17  id.,  276;  Thomas  «\  Adams,  59  id.,  223;  Campbell  p. 
Campbell,  63  id.,  502;  Rhoads  v.  Rhoads,  43  id.,  239;  Quigley  r.  Roberts,  44  id., 
503;  Barnes  v.  Hazleton,  50  id.,  429;  Ewell's  Lead.  Cases  on  Infancy  and  Cover- 
ture, 229,  et  seq. 

The  fact  that  the  guardian  ad  litem  of  an  infant  defendant  does  not  answer 
for  the  infant,  does  not  deprive  the  court  of  jurisdiction  over  the  infant. 
Goudy  V.  Hall,  36  111.,  313.     See  EweU's  Lead.  Cases,  235. 

2  See  Moran  v.  Palmer,  13  Mich.,  367. 

*See  Jerome  v.  Hopkins,  2  Mich.,  96;  Cicotte  v.  Gagnier,  id.,  381;  Warner 
r.  Whittaker,  6  id.,  133;  Bloomer  i?.  Henderson,  8  id.,  395;  Bomier  f.  Cald- 
well, id.,  463;  Barrows  t\  Baughman,  9  id.,  213:  Wurcherer  v.  Hewitt,  10 id., 
453;  Dunn  v.  Dunn,  11  id.,  284;  Peckhara  v.  Buflfam,  id.,  529;  Perkins  r.  Per- 
kins, 12  id.,  456;  Moran  v.  Palmer,  13  id.,  367;  Converse  r.  Blumrich,  14  id., 
109;  Hubbard  v.  Wisner,  15  id.,  146;  Payne  r.  Avery,  21  id.,  524;  Fosdickf. 
VanHusan,  id.,  567;  Ford  v.  Loomis,  33  id.,  121;  Smith  v.  Rumsey,  id.,  183. 

192 


SECOXD  CIRCUIT,  JULY,  1S43.  201 

Thayer  v.  Lane. 
Jfiles  <&  WiIso7i,  for  complainants, 

C.  W.  Za7ie,  in  person. 

The  Chancellor.  The  bill  is  filed  for  the  partition  of  six- 
teen village  lots  in  the  village  of  Ann  Arbor,  In  August, 
1829,  Kichard  H.  Root  and  Samuel  Wheeler,  both  of  whom 
are  now  dead,  purchased  the  lots  in.  question  of  one 
^■^Elisha  Belcher,  Eoot  and  Wheeler,  at  the  time  of  the  [*201] 
purchase,  were  partners  in  the  manufacture  of  iron,  in 
the  State  of  Ohio,  where  they  resided.  Root  owned  two-thirds, 
and  Wheeler  one-third  of  the  partnership  interest,  and  the  lots 
were  purchased  with  partnership  effects.  These  facts  do  not 
appear  from  the  pleadings  but  from  the  evidence  in  the  case. 
The  bill  states  that  Root  was  seized  in  fee  of  two  undivided 
thirds,  as  tenant  in  common  with  Wheeler,  who  was  seized  of 
the  other  third.  The  latter  died  in  October,  1831,  and,  in 
December  following,  Aaron  Wheeler  and  Charles  Wheeler  were 
duly  appointed  administrators  of  his  estate  by  the  constituted 
authorities  of  the  State  of  Ohio,  In  June,  1834:,  Root  deeded 
twelve-sixteenths  of  the  lots  to  the  defendant,  Monroe,  who,  in 
September  following,  conveyed  twelve  of  the  lots  to  Thayer, 
four  of  which  Thayer  still  holds,  and  the  other  eight,  having 
been  conveyed  by  him,  are  severally  held  by  some  one  of  the 
other  complainants,  or  the  defendant,  Howlet,  under  Thayer's 
title.  The  bill  states  that  a  parol  partition  was  made  of  the 
lots,  in  183-1,  by  Charles  Wheeler,  one  of  the  administrators, 
and  Monroe,  about  the  time  the  latter  purchased  of  Root.  That 
"Wlieeler  and  Monroe  came  to  Ann  Arbor  to  see  the  lots,  and 
while  there,  agreed  Wheeler  should  have  the  choice  of  four  lots 
for  the  third  belonging  to  the  estate  of  Samuel  AA^heeler  de- 
ceased, and  that  the  other  twelve  should  belong  to  Monroe;  and 
that,  in  consequence  of  such  partition.  Root  deeded  twelve  six- 
teenths of  the  lots  to  Monroe,  who  donveyed  twelve  of  the  lots, 
or  all  except  the  four  selected  by  the  administrator,  to  Thayer, 
This  parol  partition  is  denied  by  the  administrator,  who  has 
been  examined  as  a  witness  by  comj)lainants.  It  is,  however, 
Vol,  1,-13  193 


202  CASES  IX  CIIAXCEKY. 

Thayer  v.  Lane. 

of  no  consequence  whether  a  partition  was  or  was  not  made,  by 

Monroe  and  the  administrator,  except  for  the  purpose  of 
[*202]  showing  the  mistake  "^under  which  the  deeds  from  Root 

to  Monroe,  and  from  Monroe  to  Thayer,  were  executed. 
Charles  "VVheeler  was  appointed  administrator  in  the  State  of 
Ohio.  As  such  he  had  no  control  over,  or  interest  in,  the  real 
or  personal  estate  of  the  intestate  in  this  State.  Had  he  been 
appointed  in  our  own  State,  he  would  have  had  no  authority  to 
make  partition  of  the  real  estate  of  the  intestate,  which  descends 
to  the  heir,  and  does  not  go  to  the  administrator.  If  the  j^er- 
sonal  estate  is  insufficient  to  pay  the  debts,  the  administrator 
may  apply  to  the  judge  of  probate  for  a  license  to  sell  the  whole, 
or  so  much  of  the  real  estate  as  is  necessary  for  that  purpose. 
He  has  no  other  interest  in  the  real  estate  of  his  intestate. 

The  infant  heirs  and  the  administrator  appointed  by  the  judge 
of  probate  of  Washtenaw  county,  in  this  State,  are  defendants. 
Tlie  heirs  have  put  in  an  answer,  by  their  guardian  ad  litein^ 
admitting  the  allegations  of  the  bill,  and  the  complainants  con- 
tend they  are  entitled  to  a  decree  on  such  answer  as  against 
them.  This  is  a  mistake,  ISTo  decree  will  be  entered  against 
an  infiint  on  a  bill  taken  against  him  as  confessed,  or  on  the 
answer  of  his  guardian  ad  litem,  admitting  the  facts  stated  in 
the  bill.  The  answer,  in  such  case,  is  regarded  as  a  pleading 
merely,  and  cannot  be  used  as  evidence  for  or  against  the  infant, 
against  whom  the  complainant  must  prove  his  case.  2fills  v. 
Dennis,  3  J.  C.  R.  367;  Bidkley  v.  Van  Wych,  5  Paige  R. 
536;  Stephenson  v.  Stephenson,  6  Paige  R.  353. 

The  administrator.  Lane,  had  obtained  a  license  from  the  pro- 
bate court  of  Washtenaw  county,  to  sell  the  intestate's  interest 
in  the  lots,  when  complainants  filed  their  bill  and  obtained  an 
injunction  against  the  sale.  By  his  answer,  Lane  denies  that 
Root,  in  his  lifetime,  was  seized  of  two  undivided  third  parts 

of  the  lots,  and  Wheeler  of  but  one  undivided  third  part; 
[*203]  and  insists  that  Root  and  *Wlieeler,  under  the  deed  to 

them  from  Belcher,  were  tenants  in  common,  each  of  an 
undivided  moiety.  This  brings  up  the  question  whether,  in 
equity,  real    estate  purchased   by  partners,  with  partnership 

194 


SECOND  CIECUIT,  JCTLY,  1843.  204 

Thayer  v.  Lane. 

effects,  is  partnership  property.  At  law,  they  hold  it  as  tenants 
in  common,  and  not  as  partners.  It  was  so  decided  in  Cole  v. 
Cole,  15  J.  R.  159,  and  Goodioin  v.  Richardson,  11  Mass  R. 
469.  These  decisions  must  be  understood,  however,  as  havin<i^ 
reference  to  the  legal  estate,  or  interest  of  the  parties  in  the 
land,  and  not  to  their  equitable  interest  as  partners.  Between 
the  heir  and  personal  representative  of  a  deceased  partner,  real 
estate  so  purchased  has  been  held,  in  a  number  of  cases  in  the 
English  Court  of  Chancery,  to  descend  to  the  heir.  Thornton 
V.  ^D'txon,  3  Bro.  R  199;  Bell-j.  Tlimjer^lY^^.Yx..  453;  Bal- 
main  v.  Shore,  9  Yes.  R.  500.  But  a  contrary  doctrine  was 
held  in  Tovmshend  v.  Devaynes,  1  Mont,  on  Part.,  App.  96 ; 
Smith  V.  Smith,  1  Yes.  R.  189;  and  Ripley  v,  WaterwortJi, 
1  Yes.  E-.  425.  And  the  better  opinion  is  said  to  be,  that  equity- 
will  consider  the  person  in  whom  the  legal  estate  is  vested,  a 
trustee  for  the  partnership,  and  distribute  the  property  as  per- 
sonal estate.  3  Kent  Com.  37;  Col.  on  Part.  76;  Gow.  on 
Part.  52. 

Whatever  may  be  the  rule  in  equity  between  the  real  and 
personal  representative  of  a  deceased  j^artner,  I  think  there  can 
be  no  doubt  that  as  between  the  partners  themselves,  real  estate 
purchased  by  them  with  partnership  effects,  is  partnership  prop- 
erty, and,  on  the  dissolution  of  the  lirm,  should  be  divided  as 
such,  each  taking  that  interest  in  it  which  he  lias  in  the  per- 
sonal property  of  the  partnership;  unless,  at  the  time  of  mak- 
ing the  purchase,  it  was  understood  to  be  an  individual,  and 
not  a  partnership  transaction.  A  contrary  doctrine  would  lead 
to  manifest  injustice,  in  case  of  insolvency  of  one  of  the 
partners,  or  where  -their  interest  in  the  partnership  was  [^^204] 
not  equal,  as  is  frequently  the  case.  Green  v.  Green,  1 
Ilam.  Ohio  P..  535;  Sigourney  v.  Mtindy,  7  Conn.  P.  11." 

Poot  having  two  shares  to  "Wheeler's  one  in  the  partnership 
between  them,  Avas  in  equity  the  owner  of  two  undivided  third 
parts  of  the  lots,  when  he  conveyed  to  Monroe.  And  Monroe, 
supposing  there  had  been  a  partition  made  of  them  between 
him  and  Charles  "Wheeler,  intended  to  convey  the  whole  of  his 
interest  to  Thayer,  when  he  deeded  to  him  the  twelve  lots. 

195 


205  CASES  m  CHAJs^CERY 


Thayer  v.  Lane. 


Tliayer  and  his  grantees,  consequently,  are  entitled  to  Eoot's 
interest  in  the  lot&,  which,  at  law,  was  an  undivided  half,  but 
in  equity,  two  equal  undivided  third  parts.     Can  a  decree  be 
entered  accordingly,  based  on  the  equitable  rights  of  the  par- 
ties ?     I  should  entertain  no  doubt  on  this  ix)int,  if  the  bill  were 
so  framed  as  to  present  the  equities  of  the  parties  under  the 
deed  from  Belcher  to  Eoot  and  Wheeler.     Partition  may  be 
decreed  according  to  the  equitable  rights  of  the  parties.     Coxe 
V.  Smith,  4  J.  C.  E.  271.     But,  to  enable  the  Court  to  make 
such  decree,  the  equitable  rights  of  the  parties  should  appear 
from  the  pleadings  in  the  case.     The  bill,  it  is  true,  states  the 
rights  of  Eoot  and  "Wheeler  to  have  been  two-thirds  and  one- 
third,  but  it  must  be  understood  with  regard  to  tlieir  legal,  not 
their  equitable  rights.     It  does  not  as  much  so  refer  to  the  lat- 
ter; for  tliere  is  no  mention  made  in  any  part  of  the  bill,  of 
the  partnership  of  Eoot  and  Wheeler,  the  different  interests 
of  the  partners,  the  purchase  of  the  lots  by  them  as  partners, 
and  the  payment  of  the  purchase  money  out  of  the  partner- 
ship property,  and  the  deed  from  Belcher  to  them  as  tenants 
in  common,     ^o  one  of  these  facts,  out  of  which  the  equities 
of  the  parties    arise,    appears   from   the   bill,    or    is   put   in 
issue  by  the  pleadings.     They  are  brought  before  the  Court 
by    the    evidence    in    the    cause,    and    make    out    a 
[^205]  *case  entirely  different  from  that  made  out  by  the  plead- 
ino-s.     The  rule  is,  that  the  relief  given  must  be  consist- 
ent with  the  case  made  by  the  bill.     English  v.  Foxall,  2  Pet. 
E.  595;    WilJdn  v.  Wilkin,  1  J.  C.  E.  Ill;  13  Yes.  E.  119; 
3  Paige  E.  478;  2  Paige  E.  396.     I  cannot,  therefore,  decree 
a  partition  on  the  equitable  rights  of  the  parties;  and  to  enter 
any  other  decree  would  be  doing  injustice  to  the  complainants. 
The  bill  must  be  dismissed  without  costs,  and  with  leave  to 
complainants  to  iile  a  new  bill  setting  up  their  equitable  rights, 
unless  the  administrator.  Lane,  without  prejudice  to  his  right 
to  an  appeal  on  the  merits,  will  consent  to  a  decree  being  en- 
tered, for  a  partition,  according  to  the  equitable  rights  of  the 
parties,  at  complainants'  expense. 

A  decree  entered  by  consent  of  administrator. 

196 


THIRD  CIRCUIT,  JULY,  1843.  200 


Norris  v.  Sbowermiin. 


*Maek  Norris  v.  Timothy  Showerman  and   ['='206] 
Lewis  S,  Church. 

In  construing  an  instrument,  the  whole  of  it  should  be  considered,  and  a  con- 
struction of  a  detached  part,  without  reference  to  the  rest,  is  erroneous.' 

An  agxeemont  by  a  lease  in  a  memorandum  signed  by  him  at  the  foot  of  the 
lease,  before  it  was  assigned,  constitutes  a  part  of  the  lease. 

Where  equities  are  equal,  and  neither  party  has  the  legal  title,  or  the  legal  title 
has  been  procured  with  a  knowledge  of  the  prior  equity,  the  party  who  has 
the  prior  equity  must  prcvaU.* 

Where  water  was  leased  in  the  following  words:  "The  right  and  privilege  of 
drawing  from  the  west  side  of  a  race  now  making  by  the  said  party  of  the 
first  part,  in  Ypsilanti  aforesaid,  and  leading  to  his  new  saw-mill,  at  any 
place  -^v-ithin  sixteen  rods  from  the  head-gate  of  said  race,  as  much  water 
as  win  run  through  an  aperture  of  two  feet  square,  under  a  head  of  four 
feet  from  the  top  of  said  aperture,"  &e.,  it  teas  held  the  words  "under 
a  head  of  four  feet  from  the  top  of  said  aperture,"  must  be  construed  as 
referring  to  the  location  of  the  aperture,  and  not  to  the  quantity  of  water 
leased;  and  that  the  lessee  was  entitled  to  as  much  water  as  he  could  take 
through  an  aperture  two  feet  square,  made  in  the  side  of  the  i-ace,  not 
lower  down  than  four  feet  below  the  surface  of  the  water  in  the  race;  and 
not  to  as  much  water  as  would  pass  into  space,  through  such  an  aperture, 
under  a  head  of  four  feet  above  the  top  of  the  aperture. 

The  bill  in  this  case  was  filed  to  obtain  an  admeasurement 
of  water  under  the  following  lease: 

"Article  af  agreement  made  and  entered  into  this  ninth  day 
of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
<uid  thirty-two,  between  Mark  N'orris  of  Ypsilanti,  county  of 
Washtenaw  and  territory  of  Michigan,  of  the  first  part,  and 
Alanson  M.  Hurd,  of  Detroit,  in  the  territory  aforesaid,  of  the 
second  part,  witnesseth:  that  the  said  party  of  the  first  part, 
for  and  in  consideration  of  the  covenants  and  agreements  here- 
inafter contained  to  be  performed  and  kept  by  the  said  partj^ 
of  the  second  part,  doth  hereby  grant  and  convey  to  the  said 
party  of  the   second  part,  and  to   his   heirs  for  fifty  years, 

'See  Bronson  v.  Green,  ante,  56  and  note. 
*See  Wing  v.  McDonald,  ante,  175. 

197 


207  CASES  m  CHANCERY. 


Norris  v.  Shower  man. 


r*20T]  and  tlie  ^privilege  of  renewing  this  agreement  for  fifty 
years  more,  at  the  end  of  this  term,  the  right  and  priv- 
ileo-e  of  drawing  from  the  west  side  of  a  race,  now  making  by 
the  said  party  of  the  first  part,  in  Ypsilanti  aforesaid,  and 
leadiuo-  to  his  new  saw-mill,  at  any  place  within  sixteen  rods 
from  the  head-gate  of  said  race,  as  much  water  as  will  run 
throuo-h  an  aperture  of  two  feet  square  under  a  head  of  four 
feet  from  the  top  of  said  aperture,  for  the  use  of  carrying  ma- 
chinery for  iron  works,  provided  so  much  shall  be  needed  by 
the  said  party  of  the  second  part  for  such  use,  and  also  the 
rio-ht  of  erecting  a  bridge  across  said  race  and  using  the  same. 
In  consideration  whereof,  the  said  party  of  the  second  part 
hereby  agrees  to  pay  to  the  said  party  of  the  first  part  the  sum 
of  fifty  dollars  per  year,  payable  annually  on  the  ninth  day  of 
June,  for  the  payment  of  which  sum  the  said  party  of  the 
second  part  hereby  binds  himself,  his  heirs,  executors  and 
administrators." 

"  It  is  hereby  further  agreed  by  and  between  the  parties 
aforesaid,  that  in  case  two  feet  square  of  water  should  not  be 
enough  for  the  use  of  such  iron  works,  as  the  said  party  of  the 
second  part  may  hereafter  erect  near  said  race,  that  he  shall 
have  as  much  more  as  maybe  necessary  for  such  use  by  paying 
therefor,  at  the  same  rate  as  for  the  two  feet  square  aforesaid. 
It  is  further  agreed  that  in  case  a  sufiicient  quantity  of  ore 
cannot  conveniently  be  procured  for  carrying  on  said  iron  works 
to  advantage,  that  the  said  two  feet  square  of  water  may  be  used 
for  such  other  machinery  as  the  said  party  of  the  second  part 
shall  think  fit  and  proper. 

In  witness  whereof  the  said  parties  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

In  presence  of     )  Mark  J^orris,  [L.  S.] 

F.  M.  Skinner.  \  A.  IL  Hurd,  [L.  S.] 

[*208]  •    *It  is  further  agreed  that  the  water  is  to  be  measm-ed 
at  the  head -gates. 
Witness  present  I  A.  M.  Hurd,  [L.  S.] 

E.  M.  Skinner.  ] 

The  lease,  with   the   memorandum  at  the  foot  of  it,  was 
198 


TIIIRD  CIRCUIT,  JULY,  1843.  209 

Norris  v.  Showerman. 

loconk-d  June  2Gtli,  1S34;  and  Ilurd,  May  22d,  1835,  assigned 
one-half  of  the  lease  to  Jaines  M.  Edwards,  Abel  Godard,  and 
Allen  Stewart,  and  the  other  half  to  Morris  Sage.  The  assign- 
ments referred  to  the  lease  as  recorded;  and  tlie  bill  stated  the 
defendants  were,  by  assignment,  the  owners  of  the  whole  lease- 
Jiold  interest.  It  also  stated  that,  after  the  lease  was  executed, 
it  was  agreed  between  complainant  and  Ilurd  the  water  should 
be  taken  from  the  dam,  instead  of  the  race  leading  to  complain- 
ant's mill;  and  that,  in  consequence  of  such  agreement,  the 
water  was  taken  by  a  flume  from  the  dam,  and  the  memoran- 
•  lum  at  the  foot  of  the  lease  was  made  and  signed  by  Kurd. 
That  the  flume  had  become  old  and  leaky;  that  defendants  had 
refused  to  repair  it;  that  it  permitted  the  water  to  waste;  and 
that  defendants  used  more  w'ater  than  they  were  entitled  to 
under  the  lease,  to  the  great  injury  of  complainant's  mill. 
That  complainant  notified  them  he  wished  to  have  the  water 
measured,  and,  in  December,  1838,  gave  them  notice  he  would 
attend  to  assist  in  putting  in  a  head-gate  for  that  purpose,  and, 
defendants  refusing  to  attend,  he  put  in  a  head-gate  with  an 
aperture  two  feet  square  in  it  for  the  w^ater  to  pass  through 
from  the  mill-pond  into  the  flume,  w-hich  head-gate  Showerman 
soon  after  removed.  That,  in  May,  1839,  defendants  still 
refusing  to  assist  in  putting  in  a  head-gate,  complainant  caused 
a  new  head-gate,  with  an  aperture  as  aforesaid  to  be  fitted  in, 
which  Showerman  also  removed. 

The  bill  prayed  the   defendants  might  be  required, 
■■•under  the  direction  of  the  Court,  or  some  one  to  be  ap-  [^209] 
])ointed  for  that  purpose,  to  replace   the  head-gate   so 
removed  by  them,  and  be  enjoined  from  afterwards  removing  it. 

The  answer  of  Show^erman  admitted  the  lease  and  the  record- 
ing thereof,  but  denied  the  memorandum  at  the  foot  was  a  part 
of  it.  Admitted  the  several  assignments  of  the  lease  set  forth 
in  the  bill,  and  stated  the  entire  leasehold  interest  was  in  him, 
Church  having  assigned  to  him  long  before  the  bill  was  filed. 
Denied  he  had  drawn  more  water  than  he  was  entitled  to  under 
'the  lease.  Stated  he  had,  from  time  to  time,  repaired  the  flume, 
and  prevented,  as  far  as  was  in  his  power,  the  waste  of  water  by 

109 


210  CASES  m  CHANCERY. 

Norris  v.  Shower  man. 

leakage.  That  Hard  had  sold  his  interest  in  the  lease  before 
lie  made  the  memorandum ;  that  Hnrd  had  no  authority  for 
making  the  memorandum  at  the  foot  of  the  lease;  that  com- 
plainant had  frequently  requested  to  have  the  water  measured: 
at  the  head-gate,  but  he  had  always  insisted,  and  still  insisted., 
it  should  be  measured  on  the  wheel,  and  not  at  the  head-gate. 
Admitted  comjDlainant,  in  1838,  put  in  a  head-gate  with  an  ap- 
erture as  stated  in  the  bill,  but  that  there  was  not  a  head  of 
four  feet  over  the  aperture,  and  that  he,  with  the  assistance  of 
others  nnder  his  direction,  removed  the  headgate  put  in. 
Made  the  like  admission  with  regard  to  the  head-gate  put  in., 
in  May,  1839.  Admitted  the  memorandum  at  the  foot  of  the 
lease  was  made  by  Hurd  before  the  lease  was  assigned  by  him, 
but  that  he  had  j)reviously  sold  his  interest  in  the  lease,  and 
given  the  purchasers  the  entire  control  of  the  proj)erty. 

Many  witnesses  were  examined  as  to  the  measurement  of 
water,  etc.,  and  the  bill  was  taken  as  confessed  against  Church. 

Kingsley  c&  BacJcus,  for  complainant. 

Zane  &  Miles ^  for  Showerman. 

[■^210]  *TnE  Chancellor.  Many  witnesses  have  been  examined 
and  much  testimony  has  been  taken  in  this  cause,  but  it 
must  turn  altogether  on  the  construction  to  be  given  to  the 
agreement  or  lease. 

Showerman  insists  he  is  entitled  to  as  much  water  as  will 
pass  through  an  aj)erture  two  feet  square,  under  a  head  of  four 
feet  above  the  top  of  the  aj^erture,  and  with  nothing  below  the 
aperture  to  obstruct  the  water  in  passing; — that  is,  the  water, 
passing  through  the  aperture,  must  not  pass  into,  or  be  ob- 
structed by  dead  water  below. 

The  words  of  the  lease,  "  as  much  water  as  will  run  through 
an  aperture  of  two  feet  square,  under  a  head  of  four  feet 
from  the  top  of  said  aperture,"  it  is  contended,  refer  to  the^ 
quantity  of  water,  merely,  disconnected  from  the  mode  of  taking- 
it;  and  witnesses  have  been  examined  to  show  this  is  the  true 
200 


THIRD  CIRCUIT,  JULY,  1S43.  211 

Norris  v.  Showoraian. 

construction  of  the  lease.  I  cannot  give  sucli  a  construction  to 
the  instrument.  Such  could  not  have  Leen  the  intention  of  the 
parties  when  the  lease  was  drawn.  The  testimony  of  defend- 
iint's  witnesses  clearly  shows  to  my  mind  the  absurdity  of  the 
construction  contended  for.  Ailes  says  he  measured  the  Avater 
in  the  river  on  the  24tli  of  August  preceding  his  examination, 
nnd  that  it  would  take  about  ten-sixteenths  of  it,  nearly  two- 
thirds,  to  supply  the  quantity  leased,  measured  as  above  stated. 
]3raman,  who  gives  the  same  construction  to  the  lease,  says  de- 
fendant would  have  water  enough,  if  rightly  managed,  to  drive 
six  or  seven  run  of  stone.  It  is  evident,  I  think,  from  the 
lease  itself,  such  a  result  could  not  have  been  intended,  or  an- 
ticij)ated  by  the  parties,  when  the  lease  was  executed.  The 
water  was  leased  for  the  purpose  of  carrying  machinery  for 
iron-works  to  be  erected  by  the  lessee;  and  it  was  to  l)e  taken 
Ironi  the  side  of  the  race  leading  from  the  mill-pond  to  com- 
[)lainant's  saw-mill.  It  was  not  to  be  taken  directly  from 
the  ''''pond,  as  it  would,  in  all  probability,  have  been,  if  ['■•211] 
the  lessee  was  to  have  two-thirds  of  the  whole  water 
power  of  the  river  at  that  point.  Besides,  it  is  provided  that,  if 
the  quantity  leased  should  be  insufficient  for  the  use  of  the 
iron-works,  the  lessee  should  have  as  much  more  as  might  be 
necessary,  paying  at  the  same  rate. 

The  error  of  the  construction  contended  for,  consists  in  not 
looking  to  the  w^hole  lease  for  the  intention  of  the  parties,  but 
in  selecting  out  a  few  words,  and  giving  a  construction  to 
them,  without  reference  to  the  connection  in  which  they  stand 
with  other  parts  of  the  instrument.  By  the  language  of  the 
lease,  complainant  granted  to  the  lessee  "  the  right  and  privi- 
leo-e  of  drawino-  from  the  west  side  of  the  mill-race,  now  mak- 
ing  by  the  said  party  of  the  first  part,  in  Ypsilanti  aforesaid, 
and  leading  to  his  new  saw-mill,  at  any  place  within  sixty  rods 
from  the  head-gate  of  said  race,  as  much  water  as  will  run 
tln-ough  an  aperture  of  two  feet  square."  Suppose  the  sentence 
ended  here,  would  there  be  any  doubt  the  parties  meant  the 
lessee  should  have  as  much  water  as  would  run  through  an 
aperture  two  feet  square,  made  in  the  side  of  the  race?     It 

201 


212  CASES  IN  CHANCERY. 

Norris  r.  Showerman. 

seems  to  me  there  could  be  no  difference  of  oj)inion  on  this 
point.  But  the  sentence  continues,  "  under  a  head  of  four  feet 
from  the  top  of  said  aperture,  for  the  purpose  ot  carrying  ma- 
chinery for  iron-works."  Now,  this  part  of  the  sentence,  when 
taken  in  connection  with  what  precedes  it,  has  reference  more 
particularly  to  the  mode  of  taking  the  water,  than  to  the 
quantity  to  be  taken.  It  refers  to  the  location  of  the  aperture 
in  the  side  of  the  race,  and  limits  the  distance  the  top  of  the, 
aperture  may  be  placed  below  the  surface  of  the  water  in  tlie^ 
race,  to  four  feet.  The  lessee  is  to  have  as  much  water  as  he 
can  take  through  an  aperture,  two  feet  square,  made  in  the  side 
of  the  race,  not  lower  down  than  four  feet  from  the  sur- 
[*212]  face  *of  the  water  in  the  race.  This  is  what  I  under- 
stand by  the  words,  "  under  a  head  of  four  feet  from  the 
top  of  said  aperture,"  as  used  in  the  lease.  It  may  be  said  the 
lessee,  by  taking  the  water  in  this  way,  would  lose  in  j)art  the 
benefit  of  the  fall,  or  head.  That  is  true;  but  it  must  be 
remembered  he  would  draw  a  much  larger  quantity  than  he 
could  with  the  same  aperture  placed  on  a  level  with  the  surface 
of  the  water  in  the  race. 

Other  i^arts  of  the  lease,  I  think,  show  pretty  conclusively 
the  water  is  to  be  taken  through  an  aperture  of  two  feet  square. 
Thus,  "  in  case  two  feet  square  of  water  should  not  be 
enough;" — "at  the  same  rate  as  for  the  two  feet  square  afore- 
said;'^''— "that  the  said  two  feet  square  of  water  may  be  used," 
&c.  The  language  in  each  of  these  cases  refers  to  the  size  of 
the  aperture  through  which  the  water  is  to  be  taken;  and  the 
lease  provides  for  an  increased  quantity,  should  the  water  thus 
taken  prove  to  be  insufhcient  for  the  purposes  contemplated  by 
the  lease. 

Much  was  said,  on  the  argument,  about  the  memorandum 
made  at  the  foot  of  the  lease  by  Hurd,  the  lessee.  I  do  not 
look  upon  the  memorandum  as  of  any  importance,  one  way  or 
the  other,  unless  it  be  lor  the  purpose  of  showing  that  the  par- 
ties understood  the  lease  as  I  understand  it.  By  changing  the 
place  of  taking  the  water  from  the  race  to  the  mill-pond,  they 
did  not  increase  or  lessen  the  quantity  to  be  taken,  or  change 
202 


TimiD  CIECUIT,  JULY,  18^3.  213 


Norris  v.  Showenuan. 


:tlie  mode  of  taking  it,  except  as  to  the  place.  Xotliing  of  this 
Iciiid  would  he  implied,  and  the  memorandum  clearly  shows 
.Kjthino:  of  the  kind  was  intended. 

But  the  memorandum  is  a  part  of  the  lease.     It  was  made 
;  I  part  of  it  before  the  lease  was  assigned,  which  was  on  May 
:I-2d,  1S35.     Ilurd  had  previously  to  this,  it  is  true,  agreed  to 
assign  one-half  of  the  lease  to  Edwards,  Godard,  and 
Stuart,  and  the  other  half  to  Sage  ;  but  ^neither  of  these  [*213] 
parties  had,  at  that  time,  a  legal  interest  in  the  lease 
itself.     They  had,   at  most,  but  an  erpiitable  interest  in  the 
lease,  which  might  have  been  enforced  in  this  Court.     Now, 
complainant  had  a  still  prior  equity  to  have  the  water  measured 
at  the  head-gate,  under  the  ])arol  agreement  between  him  and 
JIurd,  when  the  place  of  taking  the  w^ater  was  changed  from 
the  race  to  the  mill-pond.     Both  Alanson  M.  Hurd  and  Philo 
C.  Ilurd  testify  the  measuring  of  the  w^ater  at  the  head-gate 
was  a  part  of  this  agreement.     Ilurd,  then,  did  only  what  a 
court  of  equity  would  have  compelled  him  to  do,  when  he 
made  and  signed  the  memorandum  at  the  foot  of  the  lease.     I 
am  now  taking  it  for  granted  the  memorandum  is  a  material 
part  of  the  lease.     Had  the  assignees  of  Hurd  taken  an  assign- 
ment of  the  lease,  without  the  memorandum  at  the  foot  of  it, 
but  with  a  knowledge  of  the  agreement  between  Hurd  and 
complainant,  they  would  have  taken  it  subject  to  complain- 
ant's  equity  to  have  the  water  measured  at  the  head-gate. 
When  equities  are  equal,  and  neither  party  has  the  legal  title, 
or  the  legal  title  has  been  procured  with  a  knowledge  of  the 
])rior  equity,  the  one  who  has  the  prior  equity  must  prevail. 
Grimstone  v.  Carter,  3  Paige  E.  -136  ;    Wing  v.  McDowell 
ante  175. 

When  complainant  put  in  the  head-gate,  in  December,  1838, 
and  again  in  May,  1839,  he  made  the  aperture  in  the  gate  as 
far  under  the  water  as  the  defendant's  flume  would  admit. 
If  defendant  wished  the  top  of  the  aperture  to  be  four  feet 
under  the  water,  when  at  high  water  mark,  he  should  have 
lowered  his  flume  for  that  purpose.  He  was  altogether  in  the 
wrouii,  in  removing  the  head-gates. 

203 


214  CASES  IN  CHANCERY. 

Hammond  v.  Michigan  State  Bank. 

Bill  dismissed  against  Cliurcli,  without  costs,  and  decree; 
entered  against  Showcrman,  in  accordance  with  the  o^^inion  of 
tlie  Court. 


[*214]  *Chaeles   G.  Hammond,   Auditor   General^ 
John  J.  Adam,  State  Treasurer,  and  Eobert 
P.  Eldredge,  Secretary  of  State,  v.  The  Presi- 
dent, Directors,  and  Company  of   the  Michigan 
State  Bank,  George  F.  Porter  and  James  F.  Joy. 

The  commissioners  appointed  to  settle  with  the  Michigan  State  Bank,  under 
the  act  of  February  1,  1840,  had  no  right  to  bind  the  State  to  pay  any 
debts  of  the  bank. 

Where  an  agent,  acting  within  the  scope  of  his  authority,  does  a  thing  which, 
stanchng  alone  and  by  itself,  would  be  biading  on  his  principal,  and  at  the 
same  time  does  something  more,  which  he  was  not  authorized  to  do,  and 
the  two  are  not  so  interwoven  with  each  other  that  they  cannot  be  sepa- 
rated, but  constitute  different  i:)arts  of  the  same  contract,  that  which  the 
agent  was  authorized  to  do,  is  binding  on  his  principal,  and  that  only 
which  he  was  not  authorized  to  do,  is  void.^ 

A  person  who  deals  with  an  agent  is  bound  to  inquire  into  his  authority,  and 
ignorance  of  the  extent  of  the  agent's  authority,  is  no  excuse.* 

To  determine  whether  a  bill  is  multifarious,  we  must  look  to  the  stating  part 
of  the  bill,  and  not  to  the  prayer  alone  ;  foK',  if,  in  his  prayer  for  reUef, 
complainant  ask  several  things,  to  some  of  which  he  may  be  entitled,  and  to 
others  not,  the  bill  is  not  on  that  account  multifarious,  but  he  will,  on  the 
hearing,  be  entitled  to  that  specific  relief  only,  which  is  consistent  with  the 
case  made  in  the  stating  part  of  the  bill.^ 

Where  the  Michigan  State  Bank  made  an  assignment  to  the  commissioners 
appointed  on  behalf  of  the  State  to  make  a  settlement  with  it,  on  condi- 
tion that  the  State  should  indemnify  and  save  harmless  the  bank  fi-om 

^See  Michigan  State  Bank  v.  Hastings,  1  Doug.,  225;  Michigan  State 
Bank  v.  Hammond,  id.,  527. 

"^  See  Korneman  v.  Monaghan,  24  Mich.,  36;  Grover  &  Baker  Sewing 
Machine  Co.  v.  Polhemus,  34  id.,  247. 

'  See  Ingersoll  v.  Korby,  ante^  65. 
204 


FIRST  CIECUIT,  JULY,  1843.  215 

Hammond  v,  Michigan  State  Bunk. 

certain  liabilities,  and  the  commissioners  thereupon  released  the  bank  from 
all  its  liability  to  the  State,  and  the  State  refused  to  accept  the  condition, 
(which  the  commissioners  were  not  authorized  to  make,)  and  caused  a  bill 
to  be  filed  to  recover  possession  of  a  part  of  the  property  assig'ned,  and  for 
an  account,  and  was  demurred  to,  for  want  of  equity,  the  demurrer  was 
overruled;  and  it  was  7ic/(/ that  the  State  acquired  by  the  assignment,  a 
right  to  the  property,  notwithstanding  the  rejection  of  the  condition.' 

Demureek  to  bill  filed  by  complainants,  as  trustees  for  the 
State,  under  "  an  act  to  provide  for  the  collection  of  certain 
assets  transferred  to  the  State,  and  for  other  purposes." 
Session  Laws  of  1842,  page  110. 

The  bill  states  that  the  State  of  Michigan,  previous  to 
*tlie  26th  of  February,  1830,  had  deposited  large  sums  [*215] 
of  money  for  safe  keeping  in  the  Michigan  State  Bank, 
and  that  on  that  day  ..the  bank  stopped  payment,  having  in  de- 
posit, money  belonging  to  the  State,  to  the  amount  of  six 
hundred  thousand  dollars,  and  upwards.  That  soon  thereafter 
the  bank  proposed  to  settle  with  the  State,  and  to  turn  out 
property  in  payment  of  the  debt,  and  thereupon  the  legislature, 
by  an  act  approved  April  10th,  1839,  (Session  Laws  of  '39, 
page  73,)  authorized  the  Secretary  of  State,  Auditor  General, 
and  Andrew  G.  Hammond,  as  a  committee  on  the  part  of  the 
legislature,  to  settle  with  the  bank  for  all  deposits  made  with 
the  bank  by  the  State,  That  this  committee  did  not  eifect  a 
settlement,  in  consequence  of  the  bank  claiming  to  set  otf  cer- 
tain demands  which  the  committee  did  not  think  themselves 
authorized  to  allow  under  the  act.  That,  thereupon,  the  legis- 
lature passed  a  joint  resolution,  which  was  approved  April  19 
1839,  entitled  "A  joint  resolution  of  the  Senate  and  House  of 
Representatives  to  extend  the  time  for  settlement  with  the 
Michigan  State  Bank,  and  to  increase  the  powers  of  the  com- 
missioners charged  with  that  duty."  By  this  resolution  the 
Auditor  General,  Secretary  of  State  and  Jonathan  Kearsley 
were  appointed  commissioners  to  settle  with  the  bank,  "  upjn 
such  terms  as  they  may  deem  equitable,"  with  authority  '•  to 
extend  the  time  for  the  payment  of  the  balances  found  to  be 

^  Overruled  on  this  point,  by  Michigan  State  Bank  v.  Hastings,  1  Doug.,  225. 

205 


216  CASES  m  CHAXCEEY. 

Hammond  v.  Michigan  State  Bank. 

due  from  said  bank  to  tlie  State,"  &c.  (Session  Laws  of  '39, 
p.  262.)  That  the  commissioners  foiled  to  make  a  settlement,' 
and  reported  that  fact,  with  their  proceedings,  to  the  Governor 
of  the  State,  June  Sth,  1839,  and,  on  the  fifteenth  day  of  the 
same  month,  the  Attorney  General  filed  a  bill  in  chancer}' 

against  the  bank,  on  the  part  of  the  State,  and  obtained  an 
[*216]  injunction.     That  the  legislature  afterwards  passed  *an- 

other  act,  approved  February  1,  1840,  which  act  is  i)i 
these  words: 

"  An  act  authorizing  the  Auditor  General,  the  State  Treasurer 
and  tlie  Secretary  of  State,  (for  the  time  being,)  to  settle  witli 
the  Michigan  State  Bank." 

"  Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  State  of  Michigan,  That  Eurotas  P.  Hastings, 
Auditor  General,  Robert  Stuart,  Treasurer  of  the  State,  and 
the  Secretary  of  State,  (for  the  time  being,)  be,  and  they  are 
hereby  appointed  commissioners  on  the  part  of  the  State  to 
settle  with  the  Michigan  State  Bank,  upon  such  terms  as  they 
may  deem  equitable.  The  said  commissioners  are  hereby  au- 
thorized to  give  such  time  for  the  payment  of  the  balances  found 
to  be  due  from  the  said  bank  to  the  State,  as  the  ability  of  said 
bank  to  meet  the  said  several  balances  may  seem  to  require; 
and  the  said  commissioners  are  hereby  authorized  to  receive 
from  said  bank  its  bond  or  bonds,  or  other  satisfactory  security, 
conditioned  for  the  pajanent  of  said  balances  at  such  times  as 
may  be  agreed  upon  between  said  commissioners  and  the  presi- 
dent and  directors  of  said  bank. 

"  2.  The  Treasurer  of  the  State  is  hereby  directed,  on  the 
ijayment  of  the  balances  so  found  due  from  said  bank,  to  pass 
the  same  to  the  credit  of  the  several  funds  to  which  they  now 
stand  due,  in  the  j^roportions  the  said  payments  may  bear  to 
said  several  funds. 

"  3.  In  case  the  said  bank  shall  fail  to  meet  the  payment  of 
its  bonds,  as  conditioned,  the  Auditor  General  shall  be,  and  he 
is  hereby  directed  to  report  such  failure  to  the  Attorney  Gen- 
eral, who  shall  therenpon  proceed  to  collect  from  said  bank  and 

206 


FIEST  CIRCUIT,  JULY,  18-13.  217 


Hammond  /;.  MichiK-an  State  Bank. 


its  sureties,  the  amount  which  may  be  due,  in  the  name  of  the 

State  of  Michigan. 

"  4.  The  persons  hereby  employed,  shall  have  power  to 

conimnte  and  receive  an  assignment  of  any  of  the  *asscts  [*217] 

of  the  bank,  which,  in  their  opinion,  shall  be  for  the 

interest  of  the  State." 

On  the  first  of  May,  thereafter,  a  settlement  was  made  be- 
tween the  State,  by  its  commissioners,  and  the  bank,  in  the  fol- 
lowing words: 

"  This  indenture,  made  this  first  day  of  May,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  forty,  between  the 
president,  directors,  and  company  of  the  Michigan  State  Bank, 
of  the  first  part,  and  Eurotas  P.  Hastings,  Auditor  General, 
Robert  Stuart,  Treasurer,  and  Thomas  Rowland,  Secretary  of 
the  State  of  Michigan,  commissioners  for  and  on  behalf  of  the 
State  of  Michigan,  for  the  purpose  of  settling  with  the  party 
of  the  first  part,  parties  of  the  second  part,  witnesseth: 

"  That  the  party  of  the  first  part,  for  the  purpose  aforesaid, 
doth  hereby  assign,  transfer,  and  set  over  to  the  parties  of  tlie 
second  part,  all  the  beneficial  interest  of  the  party  of  the  first 
part,  in  and  to  all  the  property,  effects,  notes,  accounts,  real 
estate,  mortgage  securities,  and  clioses  in  action,  contained  in 
schedule  marked  A,  hereunto  annexed,  with  all  the  rights,  pri- 
vileges and  appurtenances  thereunto  belonging,  and  with  all  tlie 
collateral  securities  by  the  party  of  the  first  part,  held,  for  and 
on  account  of  them  or  any  of  them,  in  full  payment  and  satis- 
faction of  all  debts  and  liabilities  of  the  party  of  the  first  part, 
to  the  State  of  Michigan;  subject,  nevertheless,  to  all  and  any 
discrepancies  in  the  accounts  and  demands,  arising  from  errors 
or  contingent  claims,  and  also  subject  to  all  just  charges  of 
counsel  and  expenses  heretofore  accrued  and  hereafter  to  accrue, 
upon  such  as  are  in  process  of  collection  at  law,  or  in  chancery; 
and  the  i^arty  of  the  first  part  dotli  hereby  authorize,  consti- 
tute and  appoint  the  parties  of  the  second  part,  and  each  of 
them,  their  successors  and  assigns,  or  such  other  person 
as  may  be  ^appointed  by  the  legislature,  the  attorneys  [*218] 
of  the  party  of  the  first  part,  to  sell,  convey,  alien,  lease, 

207 


219  CASES  IX  CHANCERY. 

Hammond  r.  Micliigan  State  Bank. 

assign,  collect,  secure,  commute  and  compromise,  all  and  sin- , 
gular,  the  property  and  demands  in  said  schedule  described,  in. 
their  ow7i  names,  or  in  that  of  the  party  of  the  first  part,  but '' 
at  their  own  proper  costs  and  charges,  and  all  deeds,  leases,  and  ' 
acquittances  to  give,  necessary  in  the  premises,  hereby  ratify- 
ing and  confirming  all  their  lawful  acts  and  doings  in  the 
matters  aforesaid.    And  the  party  of  the  first  part  hereby  cov- 
enant and  agree,  to  and  with  the  parties  of  the  second  part,  that 
it  will  grant  to  the  said  parties  of  the  second  part,  their  agent 
or  attorney,  at  all  reasonable  times,  access  to  such  books  and 
papers  connected  with  the  property  and  demands  mentioned  in 
said  schedule  A,  as  are  or  may  be  in  its  possession,  and  as  shall 
and  may  be  necessary,  and  to  furnish  all  such  information, 
from  time  to  time,  to  the  parties  of  the  second  part,  as  they 
may  desire,  and  the  party  of  the  first  part,  or  its  officers,  may 
be  possessed  of  or  knowing  to,  in  the  premises. 

"  And  the  parties  of  the  second  j^art,  by  virtue  of  the  author- 
ity vested  in  them,  by  "  an  act  entitled  '  an  act  authorizing  the 
Auditor  General,  the  State  Treasurer,  and  the  Secretary  of 
State,  for  the  time  being,  to  settle  with  the  Michigan  State 
Bank,'  approved  February  1st,  A.  D.  1840,"  and  by  an  act  en- 
titled "an  act  in  relation  to  the  Michigan  State  Bank,"  ap- 
proved March  28th,  1840,  do  hereby,  in  consideration  of  the 
conve3^ance,  covenants  and  stipulations  of  the  party  of  the  first 
part,  hereinbefore  set  forth,  fully  acquit  and  discharge  the  said 
party  of  the  first  part  from  all  claims,  debts,  dues  and  demands 
against  the  said  party  of  the  first  part,  and  in  favor  of  the  State 
of  Michigan,  and  from  all  liability  thereon,  or  on  account  of 
the  premises,  to  the  State  of  Michigan  aforesaid. 

"And  it  is  hereby  understood  by  and  between  the 
[*219]  ^parties  of  the  first  and  second  part,  that  the  assign- 
ments of  the  property  and  efifects  contained  in  schedule 
A,  is  made  upon  and  subject  to  the  express  condition  that  the 
State  of  Michigan  shall  indemnify  and  save  harmless  the  party 
of  the  first  part,  and  theii'  grantors,  immediate  and  remote, 
from  and  against  the  several  claims  and  liabilities  hereinafter 
specified,  forever,  viz:  A  certain  bond  and  mortgage,  executed 

208 


FIIIST  CIPwCUlT,  JULY,  1S43.  220 

Hammond  v.  Michigan  State  Bank. 

by  the  party  of  the  first  part, -to  the  Bank  of  Michigan,  upon 
their  banking  liouse  and  lot,  this  day  conveyed  by  the  party  of 
the  first  part  to  tlie  Auditor  General,  subject  to  said  mortgage, 
upon  which  there  remains  unpaid  the  principal  sum  of  $11,- 
250;  also,  a  certain  bond  and  mortgage,  executed  by  Lansing 
B.  Mizner  to  James  H.  Wood,  dated  October  19th,  A.  D.  1838, 
•on  a  house  and  lot  this  day  conveyed  by  the  party  of  the  first 
part  to  the  Auditor  General,  subject  to  said  mortgage,  upon 
which  the  principal  sura  of  Sli^OO  remains  unpaid;  also,  a 
certain  bond  and  mortgage,  executed  by  Eurotas  P.  Hastings 
to  "William  AY.  Miller,  upon  lots  eight,  nine,  fifty-four  and 
fifty -five,  in  section  four,  in  the  city  of  Detroit,  this  day  con- 
veyed by  the  party  of  the  first  part  to  the  Auditor  General, 
upon  which  the  principal  sum  of  $10,000  remains  unpaid; 
also,  all  and  sundry  claims  by  and  in  favor  of  attorneys  and 
agents,  for  professional  services  and  disbursements,  in  and 
about  the  collection  and  securing  of  all  or  any  of  the  demands 
set  forth  in  said  schedule  A,  whicli  have  accrued  or  may  here- 
after accrue,  upon  any  collateral  securities  M'liich  are  trans- 
ferred to  the  State  of  Michigan,  and  more  particularly  set  forth 
in  schedule  marked  B,  hereunto  annexed.  In  testimony 
whereof,"  &c. 

The  bill  further  states,  that  the  property  assigned  was 
delivered  over  to  the  Auditor  General,  for  the  State,  and  the 
injunction  against  the  bank  'was  dissolved  with  the  assent 
of  the  Attorney  General,  given  in  consequence  of  the 
*settlement.  That  many  of  the  demands,  when  the  [*220] 
assignment  was  made,  were  in  possession  of  the  defend- 
ants, Joy  &  Porter,  attorneys  for  the  bank,  for  prosecution  and 
collection,  and  that  they  were  employed  by  the  Auditor  Gen- 
eral to  continue  the  prosecution  and  collection  of  such  demands 
for  the  State.  That,  by  an  act  of  the  legislature,  approved 
February  17,  1842,  the  complainants  were  constituted  trustees 
on  behalf  of  the  State,  to  take  charge  of  the  property  so  as- 
signed, &c.,  and  the  settlement  with  the  bank  was  ratified,  ex- 
cept, in  the  language  of  the  act,  "  so  much  thereof  as  purports 
to  bind  the  State  to  make  any  indemnities  to  the  said  Michigan 

YoL.  L— 14  209 


221  CASES  IX  CHANCERY. 

Hammond  v.  Michigan  State  Bank. 

State  Bank,  and  so  much  as  purports  to  bind  the  State  to  the 
paym^  )r  advancement  of  money,  whether  for  the  pniiDose  of 
discharging  incumbrances,  paying  costs,  or  for  any  otlier  pur- 
pose whatever,  which  portions  are  hereby,  on  the  part  of  the 
State,  expressly  rejected."  That,  on  or  about  the  7th  of  March, 
1842,  the  complainants,  Adam  and  Eldredge,  applied  to  Joy  & 
Porter  for  a  statement  of  the  situation  of  the  assets  in  their 
hands,  which  they  refused  to  give.  That  complainants  believed 
they  had  notjDroperly  conducted  the  business  entrusted  to  them, 
as  attorneys  for  the  State;  that,  while  so  employed,  they  were 
also  employed  by  the  bank,  adversely  to  the  interest  of  the 
State;  that,  on  or  about  the  12th  of  March,  1842,  and  while 
they  were  professing  to  act  as  attorneys  for  the  State,  the  presi- 
dent, directors  and  company  of  the  bank,  filed  a  bill  in  this 
Court  against  the  said  Eurotas  P.  Pastings,  late  Auditor  Gen- 
eral, to  enjoin  him  from  parting  with  the  said  assets  and  as- 
signed property,  to  any  officer  or  trustee  appointed  by  the  State 
to  take  charge  thereof,  and  praying  that  he  might  be  deemed, 
adjudged  and  declared  a  trustee  for  the  bank,  and  that  said 
Joy  was  counsel  for  the  bank,  and  signed  said  bill  as  such,  and 
that  said  bill  was  verified  by  the  oath  of  said  Porter,  as  presi- 
dent of  the  bank. 
[*221]  *That,  on  the  4th  of  May,  1842,  complainants  addressed 
to  Joy  &  Porter  the  following  letter: 

"  Detroit,  May  4,  1842. 
"Messrs.  Joy  &  Porter: 

"  Gentlemen — On  the  14th  day  of  March  last,  the  Auditor 
General,  Secretary  of  State,  and  State  Treasurer,  addressed  you 
a  note,  requesting  you  to  furnish  them  (as  trustees,  &c.)  a  state- 
ment of  the  assets  in  your  hands,  as  attorneys,  belonging  to 
the  State  of  Michigan,  which  were  assigned  to  the  State  by  the 
Michigan  State  Bank,  together  with  an  account,  (among  other 
tilings,)  of  your  professional  charges  on  the  same.  Your  reply 
thereto  is  entirely  unsatisfactory.  We  cannot  recognize  Euro- 
tas P.  Hastings,  Esq.,  late  Auditor  General,  as  your  client  in 
relation  to  said  assets  at  this  time.  By  the  assignment  of  the 
Michigan  State  Bank,  the  said  assets  became  the  property  of 
210 


FIRST  CIRCUIT,  JULY,   1843.  222 

Hammond  r.  Michigan  State  Bank 


('  the  State,  and  tUe  successor  of  Mr.  Hustings  succeeded  to  all 
I  the  rights  to  possess  and  control  the  same,  which  Mr.  llast- 
\     ings,  as  a  State  officer,  ever  had. 

1        "  The  act  of  the  legislature,  approved  Fe])ruary  ITth,  1S42, 
M    constituted  the  Auditor  General,  State  Treasurer,  and  Secretary 
of  State,  trustees  to  take  charge  of  said  assets, 

"  As  such  trustees,  we  do  hereby  demand  that  you  deliver  up 
to  us,  immediately  on  the  receipt  of  this,  all  said  assets  now  in 
your  hands,  all  moneys  you  have  collected  on  the  same,  and  all 
mortgages,  deeds,  or  other  evidences  of  debt  connected  with,  or 
growing  out  of  said  assets.  We  hereby  furnish  you  with  a 
schedule  of  the  demands,  notes,  and  accounts  left  wath  you, 
which  were  assigned  to  the  State,  and  for  which  the  State  holds 
3'ou  personally  responsible.  You  are  also  notified  that  your 
power,  as  attorneys  over  said  assets,  is  hereby  revoked; 
and  that,  hereafter,  *any  action  of  yours  in  relation  to  [*222] 
said  assets,  will  not  be  sanctioned  by  the  State.  The 
revocation  of  your  powers  as  attorneys  in  the  premises,  render 
it  necessary  that  you  forthwith  account  to  us  as  such  trustees, 
for  said  assets,  and  all  moneys  you  may  have  collected  or  re- 
ceived on  the  same,  as  well  as  any  and  all  securities  you  may 
have  taken  in  the  collection  of  any  portion  of  said  assets.  A 
continued  refusal  on  your  part,  to  account  to  us  as  said  trustees 
for  said  assets,  and  for  the  moneys  you  may  have  collected  on 
the  same,  will  be  considered  by  us  a  breach  of  your  professional 
duties,  and  impose  upon  us  the  unpleasant  duty  of  applying  to 
the  laws  and  the  courts  for  the  proper  redress, 

"  Hoping  that  you  may,  on  reflection,  be  induced  to  act  in 
the  premises  pursuant  to  law,  and  in  accordance  with  the  rules 
which  subsist  between  attorneys  and  clients, 
"  We  are,  respectfully, 

"  Your  obedient  servants, 
"C.G.  Hammond, 

''^Auditor  General, 

"^-  '^^  ^''-''''  \  Trustees'' 

^^  State  Treasxirar, 

"  B.  P.  Eldredge, 

"  Secretary  of  State,  /  211 


223  CASES  m  CIIAKCERY. 

Hammond  v.  Michigan  State  Bank. 

That,  on  the  seventh  of  the  same  month,  complainants  re- 
ceived from  Joj  c&  Porter  an  answer,  dated  on  the  fourth  of 
May,  from  which  the  following  is  an  extract: 

"  Detroit,  May  4,  1842. 
"  Gentlemen — We  liave   your  letter  of  to-day,  enclosing   a 
schedule  of  papers  v>^hich  you  supposed  to  be  in  our  office  for 
collection,  for  the  benefit  of  the  State,  as  the  assignee  of  the 
Michigan  State  Bank.     With  regard  to  that  schedule,  we  may 
remark  that  most  of  the  papers  therein  mentioned,  were 
[*223]  never  in  our  office,  or  in  any  way  subject  *to  our  con- 
trol or  supervision.     With  regard  to  those  which  were 
actually  placed  in  our  hands  by  the  State  Bank,  (and  none  of 
these  papers  were  placed  in  our  hands  by  any  one  else,)  we 
have  to  say  that,  in  the  present  position  of  the  controversy  be- 
tween that  bank  and  the  State,  we  cannot,  with  safety  to  our- 
selves as  individuals,  nor  with  propriety  as  professional  men, 
place  them  in  your  control. 

"  The  bank  does  not  recognize  your  right  to  take  possession 
of  these  assets.  It  does  not  recognize  the  right  or  the  power  of 
the  legislature  to  sa}^  that  its  property  shall  be  taken  from  it  and 
appropriated  to  public  use,  without  a  compensation.  Nor  does 
it  choose  to  submit  to  arbitrary,  unjust,  and  oppressive  acts  of 
legislation,  which  break  down  all  the  barriers  of  private  right, 
and  subjects,  (if  the  legislature  possesses  the  power  which  it 
has  attempted  to  exercise  in  this  instance,)  all  the  private  prop- 
erty of  all  the  citizens  of  the  State,  to  the  mere  will  of  the 
leo-islature,  without  control  or  possibility  of  procuring  any  re- 
dress. It  will  not  voluntarily  submit  to  be  deprived  of  its 
property,  by  the  State,  in  violation  of  its  rights,  and  in  open 
violation  of  express  stipulations  and  conditions,  and  of  the  uni- 
versal right  guaranteed  by  the  great  fundamental  principles  of 
our  government,  to  all  who  enjoy  its  protection,  to  acquire  and 
be  protected  in  the  possession  and  enjoyment  of  their  private 
property.  The  assignment  to  which  you  allude,  conveyed  these 
and  other  assets  to  the  commissioners  appointed  by  the  State, 
upon  and  subject  to  an  express  condition  to  be  performed  by 
212 


FIEST  CIRCUIT,  JULY,  1843.  224 

i      ■ 

\  Hammond  v.  Michioran  State  Bank. 

\^   — : : — — : r. — 

)       the  State,     Upon  the  performance  ot  that  condition,  the  State 

I      wonld,  of  course,  acquire  an  absolute  riglit  to  the  property. 

\      And  it  is  equally  clear,  that,  if  the  State  refused  to  perform  the 

\     condition,  it  must  forfeit  all  right  and  title  in  and  to  the  prop- 

(     erty  so  assigned. 

"  In  our  view,  it  requires  no  very  great  astuteness  of 
'^mind,  or  clearness  of  perception,  to  see  this  consequence.  p224] 
Now,  the  State  has  refused  to  fulfill  and  perform  the 
condition,  upon  the  performance  of  which  alone,  it  might  ac- 
quire the  right  to  take  possession  of,  and  control  the  property, 
and  yet,  by  an  act  of  legislation,  endeavors  to  seize  it,  in  fraud 
of  the  rights  of  the  bank,  in  violation  of  law,  and  of  the  most 
cherished  principles  of  our  institutions,  and  of  civil  right  and 
liberty.  Under  these  circumstances,  you  will  excuse  us  if  we 
cannot  see,  (as  you  do  so  clearly,)  that  these  assets  have  become 
the  property  of  the  State,  and  that  you  have  succeeded,  as  State 
ofticers,  to  the  right  to  the  possession  and  control  of  them. 

"  We  shall  very  cheerfully  render,  for  the  present,  an  account 
to  the  individual,  (Mr.  Hastings,)  who  is  entitled  to  it,  and  we 
shall  as  cheerfully  render  you  an  account  of  our  doings  in  the 
premises  when  it  shall  be  ultimately  decided  that  you  have  a 
right  to  it.  At  present  the  whole  matter  is  involved  in  the  suit 
now  pending,  relative  to  this  settlement,  and  by  no  means  yet 
determined.  And,  for  your  information,  we  may  remark  that 
a  transaction  of  this  nature,  on  the  part  of  the  State,  in  open 
and  utter  disregard  of  private  rights,  and  of  the  protection 
which  is  due  from  the  government  to  these  rights,  resulting,  in 
fact,  in  a  confiscation  of  property,  without  a  trial  by  Court  or 
jury,  cannot  take  place,  pass  by,  be  acquiesced  in  by  us  as 
counsel  for  the  State  bank,  as  one,  where  no  remedy  can  be  had 
but  silence;  no  relief,  but  such  as  those  enjoy,  who  tamely  sub- 
mit to  arbitrary  power,"  &c. 

The  bill  further  states,  that  the  bank  claims  the  property  and 
effects  assigned  to  the  State  to  be  the  property  of  the  bank,  and 
that  Joy  &  Porter  claim  to  hold  the  assets  placed  in  their  hands 
by  the  State  as  attorneys  for  the  bank,  and  prays  that  the 
bank  may  be  decreed  specifically  to  perform  the  agreement, 

213 


225  CASES  IX  CHANCERY. 

Hammond  t\  Michigan  State  Bank. 

[*225]  and  that  tlie  bank,  and  Joj  &  ^Porter  may  render  an 
account  of  all  and  singular,  the  i^roperty,  assets,  de- 
mands, and  effects  in  their  possession,  or  mider  their  control, 
and  that  an  account  may  be  taken  of  all  moneys  received  by 
them  on  account  of  said  claims  and  demands,  &c.,  and  that,  if 
the  Court  should  be  of  oj)inion  the  settlement  between  the  bank 
and  State  is  not  binding,  then,  that  the  bank  may  be  decreed 
to  account  to  complainants  for  what  is  due  from  it  to  the  State, 
and  for  other  or  further  relief. 

The  demurrer  to  the  bill  is  general,  specifying  no  special 
cause. 

J'oy  c&  Porter,  in  support  of  the  demurrer. 

Upon  the  state  of  facts  mentioned  in  the  bill,  what  is  this 
case? 

First.  It  is  an  assignment  upon  a  condition  express,  and 
the  property,  by  the  terms  of  the  assignment,  was  conveyed  to 
Hastings  and  others,  subject  to,  and  upon,  the  express  condition 
that  the  State  of  Michigan  should  do  certain  acts,  which  it  now 
refuses  positively  to  do.  And  yet,  with  a  positive  and  absolute 
refusal  to  perform  the  condition,  this  bill  is  filed  against  the 
State  Bank,  and  its  counsel,  to  procure  possession  of  the  prop- 
erty, which  complainants  are  entitled  to  only  upon  the  per- 
formance of  the  condition.  Have  they  a  right  to  the  possession 
of  the  property?  In  cases  of  this  nature,  the  right  of  property, 
or  possession  of  the  property,  is  dependent  upon  the  perform- 
ance of  the  conditions.  2  Kent  Com.  497;  2  Pick.  R.  515;  2 
Barn.  &  Aid.  330;  2  Hill  R.  327;  6  J.  C.  R.  43S;  19  Yes.  R. 
235;  4  Mass.  R.  294,  &c. 

Here,  then,  it  is  clear  that  these  complainants,  or  the  State, 
on  general  principles,  have  no  right  to  touch  a  dollar  of  this 

property,   having    refused    to    fulfill    the    conditions. 
[*226]  *And  the  bank  may  replevy  from  them  all  the  personal 

property  they  held,  and  eject  them  from  all  the  real 
estate. 

For  the  nature  of  the  condition,  see  Cruise  Dig.  Tit.  13,  Ch. 

214 


FIUST  CmCUIT,  JULY,  1843.  2-21 

Hammond  c.  Michigan  State  Bank, 

1,  Sec.  9,  10,  17,  18;  Ch.  2,  Sec.  39,  49,  55-57.  Shepli. 
Touclist.  119-12C,  &c.  And  a  condition  binds  tlie  King,  as 
well  as  others;  there  is  no  exception.  If  the  condition  be  not 
fulfilled,  this  Court  will,  in  a  pnjpcr  case,  decree  a  reconvey- 
ance. Cruise  Dig.  Tit.  13,  Ch.  2,  Sec.  39.  And  notliing  will 
excuse  the  performance  of  the  condition,  except  inipossiljility, 
the  act  of  God,  &c.     Slieph.  Touchst.  132,  157;  10  J.  11.  27. 

Here,  then,  upon  every  principle  of  right,  of  law,  of  equity 
and  common  sense; — upon  every  principle  except  that  of 
arbitrary  power; — we  have  a  right  to  a  decree  in  this  Court, 
that  the  property  be  reconveyed  to  us.  Then  how  can  they  ask 
that  this  Court  shall  assist  in  carrying  out  their  nefarious 
designs? 

But  a  law  has  been  passed,  directing  these  complainants  to 
take  this  property,  convert  it,  and  pay  with  the  proceeds  State 
scrip,  &c.  Under  this  act  the  coraplainavits  claim.  Laws 
1840,  p.  9,  128;  Laws  1842,  p.  110.  Xow,  what  is  the  charac- 
ter of  this  act?  Is  it  valid,  or  void?  Had  the  State  a  right  to 
pass  it? 

It  is  void  for  several  reasons.  It  is  an  act  of  gross  tyranny. 
It  rejects  the  condition,  and  thereby  rejects  the  property,  and 
yet  seizes  it.  It  is  a  seizure  of  private  property  for  the 
redemption  of  State  scrip,  without  judge,  jury,  or  law — witli- 
out  any  estimation  of  value, — without  any  compensation, — 
without  any  State  necessity,  without  any  justification  whatever. 
This  will  appear,  if  we  reflect  upon  the  rights  of  the  parties. 
The  State  has  no  right  to  pass  such  a  law.  1  Pet.  Cond.  It. 
173-5.     2  Pet.  P.  656.     3  Story  Com.  on  Const.  661,  &c. 

But  again,  this  act  is  in  violation  of  the  second  article 
*of  the  ordinance  of  1787,  which  says   that  no  person  [*227] 
shall  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law;  and  is,  for  that  reason,  void. 

What  is  due  process  of  law?  It  means  law  in  its  regular 
course  of  administration,  through  courts  of  justice.  3  Story 
Com.  on  Const.  264,  661;  2  Dal.  P.  312;  9  Gill  &  J.  412;  1 
Bl.  Com.  139  et  seq.  This  property,  therefore,  seized  under 
this  act,  is  not  seized  by  process,  or  due  process  of  law,  at  all. 

215 


22S  CASES  m  CHANCERY 


Hammond  v.  Michigan  State  Bank. 


It  is  void  for  another  reason,  and  tliat  is,  that  it  is  in  contra- 
vention of  article  3,  of  the  constitution  of  the  State  of  Mich- 
igan, which  se]3arates  legislative,  judicial,  and  executive  powers. 
Now,  here  is  a  question  of  law,  as  to  the  rights  of  the  parties, 
under  this  assignment,  subject  to  this  condition,  which  ought 
to  have  been  left  to  the  judicial  tribunals  of  the  country,  where 
parties  could  be  heard,  and  their  rights  adjudicated  upon- 
Instead  of  this,  the  legislative  power  adjudicates,  condemns 
and  executes,  without  a  chance  of  hearing  on  the  other  side. 

Besides,  this  law  violates  the  contract  made  by  the  State 
Bank  with  the  commissioners,  and  is  therefore  void,  under  the 
clause  of  the  constitution  which  forbids  any  State  to  pass  any 
law  impairing  the  obligation  of  contracts.  The  act,  in  fact, 
alters  the  contract,  and  makes  that  which  was  conditional,  abso- 
lute. Suppose  an  act  should  be  passed,  making  all  estates 
conveyed  to  the  State  or  its  commissioners,  heretofore,  or  to 
any  other  individual,  (for  the  principle  is  the  same,)  upon  condi- 
tion, absolute  and  not  subject  to  condition;  who  will  pretend 
.  that  such  a  law  would  be  constitutional?  And,  if  a  general 
law  would  not  be,  how  can  a  law  which  affects  but  a  single  case 
be  constitutional? 

Let  it  not  be  said  that  the  State  had  a  large  debt  against 
the  bank,  and  takes  this  means  to  collect  it.  The  State 
[*228]  ^^has  the  same  process  of  law  for  the  collection  of  debts, 
as  citizens.  Courts  are  open  to  it;  it  may  sue^  and  by 
due  process  of  laio  it  may  collect  what  is  due  to  it.  But  can 
the  legislature  adjudicate  upon  the  amount  which  is  due,  try 
the  case  ex-parte^  condemn,  issue  process,  and  seize  the  prop- 
erty, &c.? 

Tliis  act  of  the  legislature,  therefore,  can  give  no  rights.  It 
is  a  void  act,  and  will  not  justify  those  who  act  under  it.  They 
may  be  sued  in  trover,  trespass,  ejectment,  and  for  mesne 
profits.  5.  Pet.  Cond.  K.  743;  18  Pick.  E.  502;  12  Mass.  P. 
468;  7  Mass.  E.  394;  11  Mass.  E.  401. 

But,  upon  the  general  principles  upon  Avhich  this  Court 
acts,  these  parties  are  entitled  to  no  relief;  their  bill  must  be 
dismissed.     They  come  here,   alleging  their  own  violent  and 


216 


FIIIST  CIRCUIT,  JULY,  1S43.  L>29 

Hammond  i\  Michigan  State  Bank. 

arbitrary  action,  and  pray  for  relief  which  they  are  entitled  to, 
upon  their  own  showing,  only  in  consequence  of  their  own 
wrong,  and  violent  and  oppressive  action.  They  must  do  equity 
"before  they  can  have  equity, — tliey  must  fulfill  this  condition, 
and  then  they  will  have  no  need  to  come  in  here,  and  ask  this 
Court  to  become  the  handmaid  of  their  iniquity, 

3lultifariousness. 

■But  this  bill,  even  supposing  the  strange  legal  positions 
taken  by  the  complainants,  to  be  true,  ought  to  be  dismissed. 
It  is  multifarious.  It  unites  two  distinct  defendants,  on 
distinct  grounds,  for  distinct  causes  of  action.  Either  the 
State  has  a  right  to  all  the  papers  in  the  hands  of  Joy  &  Porter, 
or  it  has  not.  It  is  a  question  of  legal  right  solely,  and  to  pro- 
cure an  account  from  Joy  &  Porter,  of  matters  in  their 
hands  belono-inar  to  the  State,  the  bill  should  have  been 
filed  against  them  unmixed  with  any  thing  else.  Sup- 
pose this  Court  should  determine  tliat  this  bill  cannot 
be  maintained  against  tliem,  what  earthly  connection 
have  the}'  with  the  alternative  prayer  against  the 
*bank?  If  this  bill  can  be  maintained  against  Joy  &  ['^229] 
Porter,  it  must  be  upon  the  ground  that  there  is  a  com- 
plete and  final  settlement  with  the  bank,  by  which  the  property 
passed  to  the  State.  If  it  did  so  pass,  then  Joy  &  Porter, 
holding  State  property,  are  alone  liable,  and  tliere  must  be  a 
decree  ao-ainst  them  alone.  Tliere  can  be  no  decree  aijainst 
the  bank  upon  this  basis.  But  a  decree  is  asked  against  the 
bank,  if  this  Court  is  of  opinion  that  the  settlement  made  by 
the  State  commissioners  with  the  bank,  is  not  binding  and  final 
upon  the  State,  i.  e.  if  this  settlement  is  good  and  binding,  then 
give  us  a  decree  against  Joy  &  Porter  for  an  account;  if  it  be 
not  binding,  then  give  us  a  decree  against  the  State  Bank. 
This  is  very  clear,  for  the  averments  in  the  bill  show  that,  in 
one  aspect  of  the  case,  they  can  have  a  decree  against  Joy  & 
Porter  alone.  In  folios  fifty,  fifty-one,  and  fifty-two,  it  is 
averred  that  the  bank  has  completely  fulfilled  all  its  stipulations, 
and  delivered  all  the  assets,  property,  &c.,  to  the  commission- 
ers.    The  bank  has  specifically  performed,  and  yet  they  ask  a 

217 


230  CASES  IN  CHANCEEY. 

Hammond  v.  Michigan  State  Bank. 

specific  performance  of  the  agreement.  Tliey  Lave  no  right  to 
ask  a  decree  against  the  bank,  according  to  their  own  showing, 
in  this  aspect  of  the  case.  Tliej'  certainly  have  no  right  to  ask 
one  in  the  other  aspect  of  the  case,  because  the  bank  is  released 
under  the  settlement.  The  commissioners  executed  a  release, 
and  that  part  of  the  contract  is  sanctioned  bv  the  legislature. 
Laws  of  1842,  p.  110. 

Van  Dylce  c&  Harrington,  contra. 

I.  The  first  question  that  arises  in  this  case  is,  have  the  com- 
plainants any  such  interest  in,  or  control  over  the  propert}" 
which  forms  the  subject  matter  of  this  suit,  as  will  authorize 
them  to  take  or  hold  the  possession  of  the  same? 

The  complainants  claim  the  right  to  the  property  under 
[*230j  *the  provisions  of  the  act  entitled  "  an  act  to  j^rovide  for 
the  collection  of  certain  assets  transferred  to  the  State, 
and  for  other  purposes,"  approved  February  17th,  1842,  by 
which  act  they  are  "  constituted  trustees  in  behalf  of  the  State, 
to  take  charge  of  the  assets  assigned  to  the  State,  by  the  Mich- 
igan State  Bank." 

It  appears  by  the  bill  in  this  case,  that  commissioners  were 
appointed  by  an  act  of  the  legislature,  in  1840,  for,  and  on 
behalf  of  the  State  of  Michigan,  to  settle  with  the  Michigan 
State  Bank,  and  that  the  property  which  forms  the  subject 
matter  of  this  suit,  was  conveyed  and  delivered  to  the  com- 
missioners acting  on  behalf  of  the  State,  by  tlie  bank,  under 
the  agreement  of  May  1st,  1840,  between  the  president,  direct- 
ors, and  company  of  the  Michigan  State  Bank,  and  Eurotas  P. 
Hastings,  Auditor  General,  Robert  Stuart,  Treasurer,  and 
Thomas  Bowland,  Secretary  of  the  State  of  Michigan,  acting 
for  and  on  behalf  of  the  State. 

If,  therefore,  the  property  passed  to  the  State,  by  virtue  of 
the  settlement,  conveyance,  assignment,  and  delivery,  there 
can  be  no  doubt  that  the  complainants,  who  have  been  ap- 
pointed by  an  act  of  the  legislature,  trustees  to  take  charge  of 
that  very  property,  for  and  on  behalf  of  the  State,  have  a 
right  to  its  possession,  management,  and  control. 
218 


FIRST  CIRCUIT,  JULY,  lsl3.  2S1 

Hammond  r.  Michigan  State  Bank. 

It  is  contended  on  the  part  of  tlie  defendants,  that  the 
State  has  never  complied  with  the  condition  of  the  agree- 
ment, but,  on  the  contrary,  that  it  has,  by  the  second  sec- 
tion of  the  act  of  February  17th,  expressly  rejected  the  con- 
dition, and  thereby  repudiated  the  acts  of  the  commission- 
ers and  rescinded  the  a<^reement.  Suppose  this  to  be  the 
case,  the  State  has  an  unquestionable  right  to  hold  on  to  the 
])ropei-ty  of  an  insolvent  debtor  which  is  in  its  2)ossession, 
and  to  appoint  trustees  or  receivers  to  take  charge 
*of  it,  and  appropriate  and  apply  sufficient  to  pay  the  [*231] 
debt.  This  is  a  legitimate  act  of  sovereignty,  not 
abridged  or  controlled  by  the  constitution.  It  is  not  taking 
private  property  for  j)ublic  use  without  just  compensation,  but 
is  merely  the  assertion  of  a  right,  on  the  part  of  the  State,  of 
priority  of  payment  out  of  the  assets  of  an  insolvent  debtor, 
which  are  in  the  possession  of  the  State.  Congress  have  always 
claimed  the  right  to  pass  laws  to  give  the  United  States  prior- 
ity of  payment  out  of  the  property  of  insolvent  debtors,  and 
those  laws  have,  in  all  cases,  been  declared  constitutional.  1 
Kent  Com.,  (2d  ed.)  243  to  246.  As  to  the  power  of  the  State 
to  pass  the  act  of  February  17th,  see  Serg.  Const.  Law,  357,  et 
seq. 

II.  The  State  has  a  right  to  the  property  under  the  set- 
tlement and  agreement  entered  into  by  and  between  the 
commissioners  on  behalf  of  the  State  and  the  Michigan  State 
Bank,  without  performing  the  condition  attached  to  that  agree- 
ment. 

The  commissioners  exceeded  their  authority  in  attaching  the 
condition,  and  it  never  was  obligatory  upon  the  State. 

The  extent  of  the  obligation  of  that  agreement  depends, 

1st.  Upon  the  authority,  and, 

2d.  Upon  the  power  of  the  commissioners. 

1st.  As  to  the  authority  of  the  commissioners.  The  author- 
ity of  the  commissioners  was  derived  wholly  and  entirely  from 
the  act  of  February  1,  1840.  It  was  a  special  and  limited  au- 
thority to  do  a  specified  and  lyarticular  act,  viz:  "To  settle 
with  the  Michigan  State  Bank  on  such  terms  as  they  might 

219 


232  CASES  IN  CHANCERY. 

Hammond  v.  Michigan  State  Bank. 

deem  equitable."  They  were  authorized  to  receive  an  assign- 
ment of  the  assets  of  the  bank,  but  the  act  gave  them  no  power 
or  authority  to  bind  tlie  State  to  indemmfy  or  pay  money.  A 
special  authority  must  be  strictly  pursued  in  order  to 
[*232]  bind  the  principal.  *Even  in  case  of  agencies,  if  the 
authority  of  agent  purports  to  be  derived  from  a  writ- 
ten instrument,  the  party  dealing  with  the  agent  ought  to  call 
for  and  examine  the  instrument  itself,  to  see  whether  it  justifies 
the  act  of  the  agent;  and  if,  from  his  omission  to  examine,  he 
should  encounter  a  loss  from  the  defective  authority  of  the 
agent,  it  is  properly  attributable  to  his  own  fault.  Story  on 
Agency,  69;  Atwood  v.  Munnhigs,  7  B.  &  Cres.  278;  Will- 
ington  v.  Herring,  5  Bing.  E.  M2;  1  Pet.  R.  264,  290;  1  Chit- 
ty  on  Cont.  174,  177;  S7iow  v.  Perry,  9  Pick.  R.  542;  Lee  v. 
Monroe,  2  Pet.  Cond.  R.  531,  and  note  at  the  end  of  the  case; 
13  Pet.  Abr.  508.  And  the  case  is  much  stronger  where  com- 
missioners are  appointed  by,  and  derive  their  authorit}^  from,  a 
special  act  of  the  legislature.  Denning  v.  Smith,  3  J.  C.  R. 
344. 

Here  the  agreement  was  entered  into  by  the  commissioners, 
as  appears  upon  the  face  of  it,  "  by  virtue  of  the  authority 
vested  in  them  by  an  act  entitled  an  act  authorizing  the  Audi- 
tor General,"  &c.,  "  to  settle  with  the  Michigan  State  Bank," 
&c.  The  authority  under  which  the  commissioners  acted,  there- 
fore, is  not  only  presumed  to  be  within  the  knowledge  of  the 
party  with  whom  they  contracted,  but  it  is  referred  to  in  the 
ao-reement  itself,  and  the  contract  is  made  by  both  parties  in 
reference  to  the  authority  contained  in  the  act  ajDpointing  the 
commissioners. 

2.  As  to  the  jpoiver  of  the  commissioners  to  bind  the  State  to 
indemnify  and  j^ay  money. 

A  power  may  be  given  by  deed,  by  will,  or  by  act  of  Parlia- 
ment, Sugd.  on  Powers,  1;  Paley  on  Agency,  by  Lloyd,  191. 
In  construing  the  extent  of  a  power,  the  intention  of  the  par- 
ties must  be  the  guide.     Ibid,  459;  2  Cow.  R.  233. 

"What  was  the  intention  of  the  legislature,  when  they 
[*233]  *passed  the  act  authorizing  the  settlement?    "Was  it 

220 


FIEST  CIRCUIT,  JULY,  1S43.  234 

Hammond  v.  Michigan  State  Bank. 

their  intention,  when  tlicy  appointed  commissioners  and  ^^ave 
them  authority  and  power  to  settle  with  an  insolvent  debtor, 
upon  such  terms  as  they  might  deem  equitable,  that  those  com- 
missioners should  be  at  liberty  to  bind  the  State  to  idemn\fy 
and  pay  money  to  an  unlimited  extent?  This  is  contrary  to 
common  sense,  and  to  all  rules  of  construction. 

It  is  contended  on  the  part  of  the  defendants,  that  the  act 
authorizing  the  settlement  gave  the  commissioners  full  discre- 
tionary  power  to  what  they  might  deem  equitalle  in  the  prem- 
ises, and  the  commissioners  having  deemed  it  equitahle  that 
the  State  should  make  tlie  indeinnities  and  payments  specified 
in  the  condition  annexed  to  the  agreement,  it  is  legally  bound 
so  to  do. 

Where  a  discretionary  power  is  given,  it  means  that  a  legal 
discretion  is  to  be  exercised,  not  a  wild  arbitrary  and  capricious 
discretion,  which  has  neither  law  nor  reason  to  control  it.  It 
must  be  a  sound  discretion,  exercised  upon  a  view  of  all  the 
circumstances,  to  render  it  a  legal  discretion.  6  J.  C.  H.  222; 
1  liarr.  Cli.  R.  126;  Story  on  Agency,  67. 

But,  how  came  this  word  equitahle  to  be  used  in  the  act? 

April  10, 1839,  an  act  was  passed  (see  act  No.  44,)  appointing 
commissioners,  and  authorizing  them  to  settle  with  the  Michi- 
gan State  Bank.  April  12,  1839,  the  commissioners  report, 
(see  House  Doc.  925,  No.  51,)  that  the  bank  claims  an  equitahle 
oifset  against  the  demand  of  the  State,  for  money  advanced  to 
State  officers  to  the  amount  $50,000.  The  allowance  of  which 
the  commissioners  thought  was  not  legitimately  within  the 
scope  of  their  power  and  duties,  under  the  act  by  which  they 
were  appointed.  The  committee  "  suggest  in  their  rej^ort,  (page 
930,)  for  the  consideration  of  the  legislature,  that  the 
*question  of  settlement  depends  upon  the  justice  or  ['-234] 
equity  of  the  claims  of  the  bank  against  the  State,  and 
becomes  in  a  measure  a  matter  of  expediency,  &c.,  and  they  ask 
the  legislature  to  settle  the  matter,  whether  these  claims  shall 
be  allowed  or  not." 

Upon  this  report  being  made  to  the  legislature,  they  passed 
a  joint  resolution  April  19th,  1839,  (see  resolution  No.  29,)  ap- 

221 


L'OO 


CASES  m  CHANCERY 


Hammond  v.  Michigan  State  Bank. 


pointing  "commissioners  to  settle  with  the  Michigan  State 
Bank,  upon  such  terms  as  they  may  deem  equitahle.''^ 

]^o  settlement  was  effected  by  the  commissioners  appointed 
by  this  resolution,  and,  February  1st,  1840,  act  IS'o.  8  was  passed, 
adopting  the  language  of  this  resolution.  This  is  the  way  this 
word  equitahle  comes  to  be  used  in  the  act.  It  was  intended 
merely  to  give  the  commissioners  power  to  allow  the  bank,  on 
the  settlement,  these  equitable  offsets  against  the  State,  and 
nothing  more;  and  this  all  appears  from  the  public,  and  pub- 
lished acts,  resolutions,  and  documents  of  the  legislature,  and, 
being  public  acts  and  documents,  all  parties  were  bound  to  take 
notice  of  them. 

III.  If  the  commissioners  exceeded  their  power  and  author- 
ity in  attempting  to  bind  the  State  to  indemnify  and  pay  money, 
then  is  the  agreement  void  in  toto,  or  is  only  so  much  void  as 
exceeds  the  power  and  authority  given  them  by  the  act. 

In  construing  the  contract  or  agreement,  and  ascertaining 
how  far  it  is  obligatory  upon  the  State,  it  is  proper  to  attend 
as  well  to  tlie  character  of  the  commissioners,  as  the  terms  of 
the  contract.  The  commissioners  in  this  case  were  appointed 
by  a  public  act,  to  discharge  a  public  trust,  for  a  public  benefit. 
See  17  Eng.  Com.  Law  R.  328.  And,  so  far  as  they  acted 
legitimately,  and  within  the  scope  of  their  authority 
[*235]  under  the  powers  conferred,  *effect  ought  to  be  given  to 
the  agreement,  and  no  further.  The  power  and  authority 
under  which  they  acted,  was  special  and  limited.  "  An  agent, 
constituted  for  a  particular  purpose,  and  under  a  limited  power, 
cannot  bind  his  principal  if  he  exceeds  his  power.  The  special 
authority  must  be  strictly  pursued.  Whoever  deals  with  an 
ao-ent  constituted  for  a  special  purpose,  deals  at  his  peril  when 
the  agent  passes  the  precise  limit  of  his  power.  2  Kent  Com. 
620;  Story  on  Agency,  69,  77.  And  it  is  a  well  settled  prin- 
ciple in  the  construction  of  powers,  that  where  there  is  a  com- 
plete execution  of  a  power,  and  something  more  is  added  whicli 
is  improper,  the  execution  is  good,  and  the  excess  only  is  void. 
Co.  Litt.  258,  a;  4  Cruise  Dig.  216,  Sec.  45;  Id.  218,  Sec.  49- 
222 


FIPwST  CIRCUIT,  JULY,   1S43.  230 

Hammond  v.  Michif^an  State  Bank. 

50;    Warner  v.  Howell,  3  Wash.  C.  C.  II.  12.     Sec  also  Grif- 
fith V.  Harrison,  4  T.  E.  744. 

This  rule  applies  as  well  to  agents  acting  under  special 
authority,  as  to  persons  executing  a  power.  Story  on  Agency, 
156,  IGO;  2  Kent  Com.,  617-018;  State  of  Illinois  v.  Delafield, 
8  Paige  R  527;  S.  0.  on  Appeal,  2  Hill  R.  155. 

In  Nixon  v,  Hyseratt,  5  J.  R.  58,  where  an  agent  was 
authorized  to  sell  and  convey  to  the  purchaser,  in  fee,  as  should 
be  needful  or  necessary,  according  to  th^  judgment  of  the  agent, 
and  the  agent  executed  a  conveyance  with  covenant  of  seizin, 
it  was  held  the  principal  was  not  bound  by  the  covenant  of 
seizin,  but  the  legality  of  the  conveyance  was  not  questioned. 
7  J.  K  390;  Chitty  on  Contr.  171,  (n.  1;)  6  Cow.  R.  354. 

In  this  case  the  bounds  between  the  proper  execution  of  the 
trust  and  the  excess,  are  clear  and  distinct. 

The  agreement  is  perfect  and  complete  without  the  condition 
annexed,  and  the  condition  not  being  warranted  by  the  author- 
ity given  to  the  commissioners,  is  not  obligatory  upon 
the  State,  but  is  void  absolutely  without  any  *action  on  p236] 
the  part  of  the  State,  but  the  State  has  also  expressly 
rejected  the  condition  by  a  public  act.  See  act  of  February  17, 
1842,  Sec.  2. 

If  then  the  State  is  not  bound  to  execute  and  carry  into 
eft'ect  the  entire  agreement  as  executed  by  the  commissioners, 
and  has  expressly  refused  so  to  do,  is  that  agreement  to  be  con- 
sidered as  abandoned  in  toto  and  rescinded,  or  can  it  be  enfor- 
ced by  the  State  to  the  extent  of  the  authority  and  powers  of 
the  commissioners  ? 

It  is  contended  by  the  defendants  that  the  rejected  part 
annexed  to  the  agreement  is  a  condition  precedent,  and  having 
been  rejected,  the  whole  agreement  is  rescinded.  The  answer 
to  this  is, 

First.  That  condition  was  void,  absolutely  from  the  begin- 
ning, and  therefore  never  formed  any  part  of  the  agreement. 

Second.  It  is  not  a  condition  precedent.  A  condition  pre- 
cedent is  an  act  to  be  performed  by  the  ]>laintitf  before  the 
defendant's  liability  is  to  accrue  under  his  contract.     Chitty  on 

00  Q 


23T  CASES  m  CHAKCERY. 

Hammond  v.  Michigan  State  Bank. 

Contr.  570.  That  part  of  the  agreement  which  is  called  the 
condition,  after  providing  that  the  State  shall  pay  certain  mort- 
gages, &c.,  proceeds,  "Also  all  and  sundry  claims  by  and  in 
favor  of  attorneys  and  agents  for  professional  services  and  dis- 
bursements, in  and  about  the  collection  and  security  of  all  or 
any  of  the  demands  set  forth  in  said  schedule  A,  which  have 
accrued  or  may  hereafter  accrue^  upon  any  collateral  secu- 
rities which  are  transferred  to  the  State  of  Michigan,"  &c. 
How  are  these  payments  to  be  made  before  these  services  are 
to  be  performed,  or  before  it  is  possible  to  know  what  amount 
of  services  are  to  be  performed,  or  what  they  would  amount  to? 

But  suppose  it  to  have  been  originally  a  condition  precedent 
and  binding  and  obligatory  on  the  State,  the  parties 
[*237]  *now  claiming  the  benefit  of  that  condition  have 
waived  it  by  their  own  act. 

It  appears  by  the  bill  filed  in  this  case,  (and  which,  upon 
the  demurrer  must  be  taken  to  be  true,)  that,  on  the  execution 
of  the  agreement,  the  property  and  effects  assigned  and  con- 
veyed, were  delivered  over  to  the  State,  and  have  since  been 
held  by  the  State  or  its  officers  appointed  to  take  charge  of  the 
same. 

A  party,  to  avail  himself  of  a  condition  precedent,  who  waives 
its  performance  and  proceeds  to  fulfil  the  contract  on  his  part, 
is  estopped  from  relying  on  the  condition  precedent.  Betts  v. 
Perrin,  14  Wend.  K.,  219. 

lY.  This  is  not  an  executory^  but  an  executed  contract.  The 
property  assigned  and  conveyed  has  been  delivered  over  to  the 
State,  and  a  portion  of  it  approj)riated  and  disposed  of  by  the 
State;  the  suit  against  the  bank  was  discontinued,  and  the 
injunction  dissolved,  and  the  commissioners  gave  the  bank  a 
full  release  and  discharge. 

If,  therefore,  the  condition  is  of  any  obligatory  force,  it  is 
only  as  an  independent  covenant,  and  the  defendants  cannot, 
in  any  event,  avail  themselves  of  that  covenant,  in  this  suit,  as 
a  defense,  except  they  allege  and  show  the  insolvency  of  the 
State,  a  thing  which  is  legally  impossible.  See  Tippets  v, 
Walker,  4  Mass.  K.  597. 

224 


FIRST  CIRCUIT,  JULY,  1S43.  238 


Hammond  v.  Michigan  State  Bank. 


V.  The  bill  is  not  multifarious. 

A  complainant  is  not  permitted  to  demand  several  distinct 
matters  of  distinct  natures,  against  several  defendants;  nor  can 
several  complainants  demand,  by  one  bill,  several  matters  per- 
fectly distinct  and  unconnected,  against  one  defendant,  nor 
join  separate  demands  against  the  same  defendant.  But, 
where  one  general  right  is  claimed  by  the  bill,  though  the  de- 
fendants have  separate  and  distinct  rights,  an  objection  for 
multifariousness  cannot  be  maintained.  See  Terrill  v.  Craig, 
Halst.  Dig.  168. 

*A  bill  which  sets  up  only  one  sufficient  ground  for  [■^'^238] 
equitable  relief,  is  not  rendered  multifarious  by  the  in- 
sertion therein,  of  a  separate  and  distinct  claim,  upon  which 
the  complainant  is  not  entitled  to  ask  for  either  discovery  or 
relief.  The  complainant  nuiy  join  in  the  same  bill,  two  good 
causes  of  complaint,  arising  out  of  the  same  transaction,  where 
all  the  defendants  are  interested  in  the  same  claim  of  right, 
and  where  the  relief  asked  for,  as  to  each,  is  of  the  same  nature. 
Varich  v.  Smith,  5  Paige  R.  137. 

The  object  of  tlie  bill  in  this  case  is  to  reacli  the  assets  of 
the  Michigan  State  Bank,  assigned  to,  and  taken  possession  of, 
by  the  State.  The  bill  states  that  Porter  is  the  president  of 
the  bank,  and  Joy  and  Porter  are  attorneys  for  the  bank;  that 
they  received  the  assets  in  their  hands  from  the  State,  for  col- 
lection, and  that  they  now  claim  to  hold  the  same  as  attorneys 
for  the  bank.  The  bank  is  a  proper  and  necessary  party,  for  it 
claims  the  right  to  the  assets.  The  bill  prays  for  an  account  as 
ao-ainst  Joy  &  Porter,  and  for  a  receiver  and  account  as  against 
the  bank,  and  for  general  relief;  either  or  all  of  which  the  com- 
plainants are  entitled  to,  if  a  sufficient  case  is  made  in  the 
stating  part  of  the  bill.  1  Iloff.  Ch.  Pr.  49  and  notes  1  and 
2;  Ludloio  v.  Limon,  2  Caine's  Ca.  1,  39,  52,  53. 

The  Chancellor.     By  the  act  of  17th  February,  1842,  the 

legislature  ratified  the  settlement  made  between  the  bank  and 

the  commissioners  appointed  by  the  State,  except  so  much  of 

it  as  purports  to  bind  the  State  to  pay  certain  debts  of  the 

YoL.  I.— 15  225 


239  CASES  m  CHAKCEKY 


Hammond  r.  Michigan  State  Bank. 


bank,  or  debts  for  which  the  bank  is  liable,  which  the  act  repu- 
diates. 

In  disposing  of  the  demurrer,  it  will  be  necessary,  therefore, 
to  decide  whether  the  commissioners  were  authorized  by  the 

act  of  February  1st,  1840,  under  which  they  acted,  to 
p239]  bind  the  State  to  pay  these  debts?    If  not,  *then,  whether 

the  legislature  could  confirm  in  part,  and  refuse  to  con- 
firm in  part,  what  the  agent  of  the  State  had  done,  by  ratify- 
in  o-  what  they  were  authorized  to  do,  and  rejecting  what  they 
were  not  authorized  to  do;  or  was  the  State  bound  to  ratify  or 
reject  the  whole  settlement? 

I  think  it  clear  that  the  commissioners  exceeded  their  powers 
in  attempting  to  bind  the  State  to  pay  these  debts.  They  were 
authorized  to  commute,  and  receive  an  assignment  of  any  of 
the  assets  of  the  bank,  but  not  to  contract  for  the  payment  of 
the  debts  of  the  bank,  by  the  State.  There  is  a  manifest  dif- 
ference between  taking  an  assignment  of  a  piece  of  property 
subject  to  a  lien,  and  an  agreement  on  the  part  of  the  assignee 
to  pay  the  debt;  in  the  one  case  he  would  be  personally  liable 
for  the  payment  of  the  debt,  although  the  thing  assigned  miglit 
not  be  worth  the  half  of  it,  while,  in  the  other,  he  would  at 
most  but  lose  the  property  on  which  the  debt  was  a  lien.  There 
is  nothing  in  the  act,  express  or  implied,  conferring  this  power 
on  the  commissioners.  They  might,  with  as  great  show  of 
authority,  have  taken  an  assignment  of  all  the  assets  of  the 
bank,  and  have  agreed  the  State  should  pay  all  its  debts.  In 
what  do  the  cases  differ?  Not  in  the  power,  but  in  the  extent 
of  its  execution  only. 

The  word  "  equitable,"  in  the  first  section  of  the  act,  it  has 
been  insisted,  would  warrant  a  more  liberal  construction  of  the 
powers  of  the  commissioners.  I  cannot  think  so.  There  is  no 
■connection,  as  I  can  discover,  between  it  and  tlie  power  given 
by  the  fourth  section  of  the  act.  It  is  to  be  found  only  in  the 
first  section  of  the  act,  where  it  is  used  in  connection  with  the 
powers  mentioned  in  that  section;  which  are,  1st,  to  settle  with 
the  bank;  2d,  to  give  such  time  for  the  payment  of  the  balances 
found  to  be  due  to  the  State,  as  the  ability  of  the  bank  might 
22G 


FIPwST  CIRCUIT,  JULY,  1843.  240 

Hammond  v.  Michigan  State  Bank. 

seem  to  require,  and  to  take  security  for  their  payment. 
It  is  in  *connection  witli  the  fiftt  of  these  powers  the  [*240] 
word  ^^  equitable  ^^  is  used.  The  words  of  the  act  are, 
"commissioners  on  the  part  of  tlie  State  to  settle  with  the 
Michigan  State  Bank,  upon  such  terms  as  they  may  deem  equi- 
table." It  has  reference  to  the  adjustment  or  settlement  ot 
the  "  balances  "  due  from  the  bank  to  the  State,  and  was  in- 
tended to  authorize  the  commissioners,  in  making  u])  such  bal- 
ances, to  allow  all  equitable  claims  or  set-offs  the  bank  might 
have  against  the  State.  This  is  what  is  meant  by  the  word 
"  equitable,"  in  the  first  section  of  the  act.  If  we  look  for  its 
meaning  into  the  previous  legislation  that  had  been  had  with  a 
view  to  a  settlement  with  the  bank,  we  shall  come  to  the  same 
conclusion.  The  first  act  on  the  subject  was  the  act  of  Aj)ril 
10,  1839.  This  act  authorized  the  "committee"  to  settle  with 
the  bank  for  all  deposits  made  with  it  by  the  State.  The  word 
equitable  is  not  in  it.  The  committee  afterwards  reported  to 
the  legislature  they  could  not  settle  with  the  bank,  because  it 
insisted  on  having  certain  demands  set  off  against  what  it  wa>; 
owino-  the  State,  which  the  committee  did  not  feel  authorized 
to  allow,  under  the  law  appointing  them.  Thereupon,  the  joint 
resolution  of  the  19th  April,  1839,  extending  the  time  for  mak- 
ing the  settlement,  and  increasing  the  powers  of  the  commis- 
sioners, was  passed.  By  this  resolution  the  commissioners  were 
authorized  to  settle  with  the  bank  "  upon  such  terms  as  they 
might  deem  eqtiitable."  The  same  language  is  used  in  the  act 
of  February  1st,  181:0,  the  first  three  sections  of  which,  with 
some  slight  verbal  alterations,  in  no  way  affecting  the  powers 
of  the  commissioners,  are  a  transcript  of  the  joint  resolution 
of  the  19th  of  April,  preceding.  Whether,  therefore,  we  look 
to  the  act  itself  for  the  power  of  the  commissioners,  or 
to  the  course  of  legislation  on  the  subject  of  ^^the  settle-  [*241] 
ment  with  the  bank,  the  conclusion  at  which  we  arrive 
is  the  same. 

"  All  written  powers,"  says  Mr.  Lloyd,  "  snch  as  letters  of 
attorney,  or  letters  of  instruction,  receive  a  strict  interpreta- 
tion; the  authority  never  being  extended  beyond  that  which 

22T 


242  CASES  IX  CHANCERY. 

Hammond  v.  Michigan  State  Bank. 

is  given  in  terms,  or  is  absolutely  necessaiy  for  earning  the 
antliority  so  given  into  effect^"  Paley  on  Agency,  by  Lloyd, 
192  ;  Atwood  v.  Mttnnings,  7  B.  &  C.  278.  Story's  Agency, 
%Q,  sec.  68, 

The  next  question  is,  whether  the  legislature  had  a  right  to 
reject  the  condition  without  declaring  the  whole  settlement 
void.  The  commissioners  accepted  an  assignment  of  property 
and  debts,  in  full  satisfaction  of  what  was  due  to  the  State  ; 
the  bank  was  discharged  from  its  debt  to  the  State  ;  the  prop- 
erty was  delivered  to  the  commissioners,  and  the  injunction 
against  the  bank  was  dissolved.  There  was  then  a  full  and 
complete  settlement  of  all  matters  between  the  State  and 
bank.  Had  the  commissioners  stopped  here,  there  can  be  no 
doubt  both  the  bank  and  State  would  have  been  bound  by 
the  settlement.  But  they  went  further  ;  they  annexed  a 
condition  to  the  settlement,  that  the  State  should  pay  certain 
debts  of  the  bank,  which  they  had  no  authority  to  do  under  the 
act  apj)ointing  them.  In  this,  and  in  this  alone,  they  exceeded 
their  powers.  The  State  refuses  to  recognize  this  part  of  the 
settlement.  The  bank  insists  it  cannot  reject  a  part  and  confirm 
a  part,  but  that  it  must  reject  or  confirm  tlie  whole. 

In  Story  on  Agency,  (page  156,  sec.  166,)  it  is  said  the  ques- 
tion may  often  arise,  whether  an  act  is  wholly  void  or  not, 
when  the  agent  does  more  than  he  is  authorized  to  do,  or  less 
than  he  is  authorized  to  do.  Lord  Coke  says,  "  Regularly,  it 
is  true,  that  where  a  man  doth  less  than  the  commandment  or 

authority  committed  to  him,  there,  the  commandment 
[*242]  or  authority  being  not  pursued,  the  act  -is  void.    And, 

where  a  man  doth  that  which  he  is  authorized  to  do,  and 
more,  there  it  is  good  for  that  which  is  warranted,  and  void  for 
the  rest.  Yet  both  these  rules  have  divers  exceptions  and 
limitations."  Co.  Litt.  158,  a.  "If  a  warrant  of  attorney  is 
given  to  make  livery  to  one  person,  and  the  attorney  make 
livery  to  two,  or  if  the  attorney  is  to  make  livery  of  Blackacre, 
and  the  attorney  makes  livery  of  Blackacre  and  Whiteacre,  the 
execution  is  good,  so  far  as  it  is  authorized  by  the  power,  and 
void  as  to  the  residue  ;  fo7'  the  excess  is  clearly  ascertahiahle. 

228 


FIKST  CIRCUIT,  JULY,  1843.  243 

Hammond  v,  Michigan  State  Bank. 

So,  if  a  letter  of  attorney  be  to  make  livery  absolutely,  and  the 
attorney  make  upon  condition,  this  is  a  good  execution  of  the 
power,  and  amounts  to  a  sufficient  livery;  and  the  condition  is 
void."  Story  on  Agency,  159,  sec  1G8.  Livermore  on  Agency, 
102.  Again,  "  if  an  agent  were  authorized  to  procure  insurance 
upon  a  ship  for  two  thousand  dollars,  and  he  should  procure  a 
policy  for  two  thousand  dollars  on  the  ship,  and  two  thousand 
dollars  on  the  cargo,  the  policy  would  be  good  as  to  the  ship, 
and  void  as  to  the  cargo,  at  least  unless  under  special  circum- 
stances." Story  on  Agency,  160,  sec.  169.  Livermore  on 
Agency,  101-102. 

Nixon  V.  Ilyseratt  and  Hyseratt,  5  J.  R.  58,  an  action  was 
brought  against  the  defendants  on  a  covenant  of  seizin,  in  a 
deed  executed  by  their  attorney  who  was  authorized  to  sell  the 
land  and  to  "  execute,  seal,  and  deliver,  in  their  names,  such 
conveyances  and  assurances  in  the  law,  of  the  premises,  unto 
the  purchaser,  his,  her,  or  their  heirs  or  assigns,  for  ever,  as 
should  or  might  be  needful  or  necessary,  according  to  the 
judgment  of  said  attorney."  The  plaintiff  was  nonsuited. 
The  Court  says,  "  the  attorney  was  authorized  to  sell  and  exe- 
cute conveyances,  and  assurances  in  the  law,  of  the  land  sold 
but  no  authority  was  given  to  bind  his  j)rincipal,  by 
covenants.  A  ^conveyance  or  assurance  is  good  and  [^243] 
perfect  without  either  warranty  or  personal  covenants, 
and  therefore  they  are  not  necessarily  implied  in  an  authority  to 
convey  ;  an  authority  is  to  be  strictly  pursued,  and  an  act  varvin  o- 
in  substance  from  it,  is  void."  Here  the  agent  had  done  what 
he  was  authorized  to  do,  and  something  more.  He  had  not 
only  sold  the  land  and  given  a  deed  for  it,  but  he  had  inserted 
a  covenant  of  seizin  in  the  deed,  which  he  had  no  authority  to 
do.  The  defendants  had  received  the  benefits  of  the  sale,  but 
it  was  not  so  much  as  pretended  in  that  case,  that  they  were,  on 
that  account,  bound  by  the  covenant  of  seizin  ;  that  thev  could 
not  hold  on  to  the  purchase  money,  and,  at  the  same  time,  dis- 
claim the  covenant. 

So,  in  Gihson  v.  Colt  and  others,  7  J.  R.  390.     The  defend- 
ants were  the  owners  of  a  ship,  and  had  authorized  the  master 

229 


2U  CASES  m  CHANCERY. 

Hammond  v.  Michigan  State  Bank. 

to  sell  her.  The  master  sold  her  to  the  plaintiff,  and,  at  the 
time  of  the  sale,  represented  her  to  be  a  registered  vessel,  ac- 
cording to  the  act  of  Congress.  She  was  not  a  registered  ves- 
sel, but  a  licensed  coasting  vessel  only;  and  the  action  was 
brought  for  the  deceit  of  the  agent,  in  representing  her  to  be  a 
registered  vessel.  Judgment  was  given  for  the  defendants,  the 
Court  holding  that  the  agent  had  exceeded  his  authority  in 
making  the  false  representation,  and  that  the  defendants  were 
not  bound  by  it,  although  they  had  received  ten  thousand  dol- 
lars for  the  ship. 

In  I^enn  v.  Harrison  and  others,  3  T.  R.  757,  defendants 
being  the  owners  of  a  bill  of  exchange,  which  came  to  them 
by  indorsement,  employed  an  agent  to  get  it  discounted,  tell- 
ing him  to  carry  it  to  market  and  get  cash  for  it,  but  they 
would  not  indorse  it.  The  agent  procured  a  third  person  to  in- 
dorse it,  telling  him  he  would  indemnify  him  for  it,  and 
[*244:]  the  bill  was  then  discounted.  The  -acceptor  of  the  bill 
failed,  and  the  plaintiff,  who  discounted  it,  applied  to 
defendants  for  payment,  who  at  first  refused,  but  afterwards 
promised  to  take  it  up.  The  Court  held  the  defendants  were  not 
bound  by  the  promise  made  by  their  agent  to  the  person  who 
indorsed  the  bill,  and  that,  therefore,  there  was  no  consideration 
for  the  promise  made  by  them  to  the  plaintiff,  to  take  up  the 
bill.  The  bill  in  this  case  had  been  discounted,  and  the  defend- 
ants had  received  the  money. 

In  Snow  v.  Ferry,  9  Pick.  E.  539,  bank  bills  were  handed 
to  an  agent,  with  directions  to  deliver  them  to  Snow,  and  see 
their  amount  indorsed  on  a  note  which'  Snow  held  against 
Perry,  or  to  take  a  receipt  for  the  amount.  Snow  received  the 
bills  and  gave  a  receipt,  by  which  he  promised  to  indorse  the 
amount  on  the  note,  or  return  the  bills  when  called  for.  The 
bank  soon  after  failed.  The  Court  held  the  taking  of  the  bills 
was  payment  jprc»  tanto,  the  agent  having  exceeded  his  author- 
ity in  taking  a  conditional  receij)t.  The  Court  say:  "But 
the  plaintiff  relies  upon  the  terms  of  the  receipt,  stated  in  the 
report,  and  the  condition  or  alternative  therein  expressed.  If 
this  receipt  had  been  given  by  Perry  himself,  or  by  an  agent 

230 


FIRST  CmCUIT,  JL:LY,  1S13.  245 

Hammond  v.  Michigan  State  Bank. 

competent  to  hind  him  in  this  respect,  he  would  ])e  bound  by 
the  condition.  Tlien  the  question  recurs,  conld  the  messenger, 
consistently  with  his  authority,  accept  such  recei])t?  lie  was 
instructed  to  see  the  money  indorsed,  or  to  take  a  receipt  as  for 
so  much  money  received  in  payment,  or  to  bring  the  bills  back. 
This  was  the  extent  of  his  anthority." 

The  legal  principle  to  be  deduced  from  these  cases,  is  this: 
That  where  an  agent,  acting  within  the  scope  of  his  authority, 
does  a  thing  which,  standing  alone  and  by  itself,  would  be  bind- 
ing on  his  principal,  and,  at  the  same  time,  does  some- 
thing more,  which  he  was  not  authorized  to  do,  *and  [*24:5] 
the  two  are  not  so  interwoven  with  each  other  that  they 
cannot  be  separated,  but  constitute  different  parts  of  the  same 
contract,  that  which  the  agent  was  authorized  to  do  is  binding 
on  his  principal,  and  that  only  which  he  was  not  authorized  to 
do,  is  void.  As  the  covenant  of  seizin  in  Nixon  v.  Ilyseratt; 
the  false  representation  with  regard  to  the  registry  of  thei  ves- 
sel in  Gibson  v.  Colt/  the  promise  to  indemnify  the  person 
who  endorsed  the  bill  in  Fenn  v.  Harrison,  and  the  condition 
in  the  receipt  in  Snow  v.  Perry.  In  each  of  these  cases  the 
agent  had  done  what  he  was  authorized  to  do,  and  something 
more;  but  that  something  more  stood  by  itself,  and  was  "clearly 
ascertainable,^''  and  was  therefore  void  as  it  regarded  the  prin- 
cipal, and  not  merely  voidable  in  connection  with  the  whole 
contract.  The  excess  in  each  of  these  cases,  was  an  excrescence 
upon  the  due  execution  of  the  power,  deriving  no  nutriment 
from  the  power  itself,  and  consequently  not  entering  into  and 
forming  a  part  of  its  execution,  which  was  complete  without  it. 
By  this  I  do  not  intend  to  be  understood  as  saying,  that  the 
land  or  the  ship  would  have  sold  for  as  much  as  it  did,  Avithout 
the  covenant  of  seizin,  or  false  representation;  or  that  the  note 
would  have  been  discounted  had  it  not  been  endorsed,  or  that  the 
bank  bills  would  have  been  received,  had  an  unconditional  receipt 
been  required.  This  is  not  the  principle  t»n  which  these  cases  were 
decided;  but  the  total  want  of  authority  in  the  agent  to  do  what 
he  did. 

In  what  respect  does  the  present  case  differ  from  JS'ixon  v. 

231 


246  CASES  IN  CHANCERY. 

Hammond  v.  Michigan  State  Bank. 

Hyseratt?  They  are,  it  seems  to  me,  the  same  in  principle. 
They  differ  in  form  only.  In  that  case  there  was  a  covenant; 
in  this,  there  is  a  condition  subsequent,  not  a  condition  prece- 
dent; and  in  both  cases  the  agent  exceeded  his  authority.  On 
wliat  principle  of  law  can  it  be  holden,  that  the  covenant 
[*2tl:6]  in  that  case  w^as  void  and  not  binding  *ou  the  princi- 
pal, and  the  condition  in  the  pi-esent  case  is  good  and 
binding  on  the  State? 

A  person  who  deals  with  an  agent  is  bound  to  inquire  into 
his  authority,  and  ignorance  of  the  extent  of  the  agent's  author- 
ity is  no  excuse.  But  it  cannot  be  said  the  bank  was  iguorant 
of  the  authority  of  the  commissioners,  who  acted  under  a  public 
law  or  statute  of  the  State,  of  which  the  bank  had  full  knowl- 
edge. The  commissioners,  and  those  acting  on  the  part  of  the 
bank,  I  have  no  doubt,  supposed  they  had  authority.  But  this, 
while  it  acquits  the  commissioners  and  the  representatives  of 
the  bank  of  bad  faith,  can  have  no  effect  on  the  legal  rights  of 
the  parties  to  the  settlement.  Every  man  is  supposed  to  know 
what  the  law  is,  and  his  rights  are  to  be  determined  accordingly. 
It  is  no  excuse  that  he  was  ignorant  of  the  law,  or  had  given  an 
erroneous  construction  to  it.  If  the  bank  suffer  in  conse- 
quence of  such  ignorance,  it  is  not  the  fault  of  the  State. 

In  Nixon  v.  Hyseratt^  it  does  not  appear  JSTixon  knew  the 
agent  was  exceeding  his  authority,  in  warranting  that  his  prin- 
cipals were  seized  of  the  land.  Tlie  bank  is  chargeable  with 
such  knowledge,  or,  in  other  words,  with  a  knowledge  that  the 
commissioners  were  exceeding  their  j^owers,  in  consenting  to 
the  condition;  and  can  it  take  advantage  of  its  own  wrong,  to 
compel  the  State  either  to  ratify  the  condition,  or  reject  the 
settlement  in  toto?  "Would  not  the  adoption  of  such  a  rule 
open  the  door  to  fraud? — to  collusion  between  the  agent  and 
persons  dealing  with  liira? 

The  agreement  was  not  executory  but  executed  at  the  time; 
and  the  bank  has,  from  that  time  to  the  present,  had  all  the 
advantages  and  benefits  of  the  settlement.  The  injunction  was 
dissolved  and  the  debt  due  to  the  State  canceled.  If  it  was 
now  in  tlie  power  of  the  State  to  reject  the  settlement,  which 
232 


FIRST  CIRCUIT,  JULY,   1S43.  247 

Hammond  v.  MicLigan  State  Bank. 

it  cannot  do,  (except  the  ^condition  wliicli  was  never  [*247J 
binding-  on  tlie  State,)  the  bank  could  not  place  back  the 
claim  of  the  State  where  it  was  befure  the  settlement,  and  the 
dissolution  of  the  injunction.  And  must  the  State  either  lose 
all  benefit  of  the  proceedin<^s  it  had  instituted  against  the  bank, 
and  of  the  injunction  it  had  obtained,  or  pay  a  sum  of  money 
for  the  bank  it  never  had  agreed  to  pay?  The  doctrine  con- 
tended for,  if  law,  would  present  this  alternative. 

It  is  insisted  the  bill  is  multifarious,  and  the  prayer  of  the 
bill  is  referred  to  in  proof  of  the  fact.  To  determine  whether 
a  bill  is  multifiirious,  we  must  look  to  the  stating  part  of  the 
bill,  and  not  to  the  prayer  alone;  for  if,  in  his  prayer  for  relief, 
complainant  ask  several  things,  to  some  of  which  he  may  be 
entitled  and  to  others  not,  the  bill  is  not,  on  that  account,  mul- 
tifarious, but  he  will,  on  the  hearing,  be  entitled  to  that  speci- 
fic relief,  only,  which  is  consistent  with  the  case  made  in  the 
stating  part  of  the  bill.  The  whole  drift  and  object  of  the  bill 
is  to  obtain  a  discovery  and  account,  from  Joy  &  Porter,  of  the 
assets  assigned,  and  in  their  possession  as  attorneys  for  the  bank 
when  the  assignment  was  made,  and  which  they  afterwards 
continued  to  hold  as  attorneys  for  the  State.  The  bank  is  made 
a  party  in  consequence  of  the  claim  it  sets  up  to  these  assets. 
The  bill  is  somewhat  in  the  nature  of  a  bill  of  interpleader; 
but,  instead  of  being  filed  by  Joy  &  Porter,  it  is  filed  by  the 
commissioners  against  them  and  the  bank,  they  setting  up  the 
claim  of  the  bank  as  an  excuse  for  not  accounting  to  the  com- 
missioners. 

Demurrer  overruled,  with  costs. 


233 


2iS  CASES  IN  CHANCERY 


Reeves  v.  Scully. 


[*248]  ^Reeves  v.  Scully. 

Where  a  mortgage  was  given  accompanying  a  promissory  note,  and  they  were 
assigned  before  due  to  a  bona  fide  endorsee,  held,  that  he  was  not  affected 
by  any  equities  existing  between  the  original  parties.  It  would  have  been 
otherwise,  if  a  bond  had  been  given  instead  of  the  note.^ 

The  bill  was  filed  to  foreclose  a  mortgage  for  $900,  payable 
in  one  year,  accompanied  by  a  promissory  note  payable  to  the 
morto-agee,  Hawkins,  or  order.  Hawkins  endorsed  the  note, 
and  assigned  the  mortgage  to  Scully,  before  the  note  was  dne. 
The  mortgage  and  note  were  given  to  Hawkins,  to  secure  him 
in  paying  defendant's  debts ;  and  Hawkins,  as  appeared  from  the 
evidence,  had,  at  diiferent  times,  paid  money  for  Scully,  to  the 
amount  of  $788.  Reeves  was  a  hona  fide  holder  of  the  note 
and  mortgage,  and  did  not  know  the  object  for  which  they  were 
ffiven  to  Hawkins,  when  he  took  an  assignment  of  them. 

The  Chancellok.  The  decree  must  be  entered  for  the 
amount  of  the  note  and  mortgage.  Reeves,  as  ho^ia  fide 
endorsee  of  the  note,  was  not  afi'ected  by  the  equities  existing 
between  Hawkins  and  Scully.  It  would  have  been  otherwise, 
if  a  bond,  instead  of  a  note,  had  been  given  wdth  the  mortgage. 

^See  Russell  v.  Waite,  ante,  31  and  note. 


234 


FOUliTII  CIRCUIT,  SEPTEMBER,  1S43.         240 

Jacox  V.  Clark. 


*LiNus  Jacox  v.  Nelson  W.  Clark.*     ['='249] 

Where  complainant  had  stood  by,  without  objecting,  and  allowed  defendant 
to  g'O  on  and  expend  a  considerable  amount  of  money  in  the  erection  of  a 
mill,  in  violation  of  the  terms  of  a  grant  made  by  complainant,  in  consid- 
eration of  the  erection  of  the  mill,  of  the  right  to  use  the  water  of  a  creek 
in  a  particular  manner,  it  was  Juki,  that,  by  his  silence,  he  had  waived  all 
right  to  relief  in  equity,  by  injunction,  against  diverting  the  water.^ 

This  was  a  motion  to  dissolve  an  injunction,  on  bill  and 
answer. 

Complainant  had  granted  to  defendant  the  right  of  using 
the  water  in  a  creek,  which  was  the  outlet  of  a  small  lake,  for  a 
mill  to  be  erected  by  him,  which  was  the  sole  consideration  of 
the  grant.  He  erected  the  mill,  but  at  a  point  different  from 
that  indicated  by  the  grant,  and  took  the  water  directly  from 
the  lake,  instead  of  the  creek,  and,  after  using  it,  turned  it  into 
the  Clinton  river,  instead  of  the  bed  of  the  creek,  which  con- 
nected the  lake  with  the  river,  in  violation  of  the  terms  of  the 
grant.  The  bill  prayed  a  reconveyance  of  the  right  granted, 
and  an  injunction  against  diverting  the  water. 

G.  W.  Wiener,  in  support  of  the  motion. 
M.  L.  Drake,  contra. 

The  Chancellor.  It  would  seem  from  the  deed  from  Jacox 
to  Clark,  so  far  as  it  is  set  forth  in  the  bill,  that  the  water  was 
to  be  used,  in  such  way,  by  Clark,  as  to  be  turned  back,  after  it 
had  been  used,  into  the  stream  on  Jacox's  land. 

If  this  should  prove  to  be  the  true  construction  of  the  grant, 
it  appears  Clark  gave  a  dift'orent  construction  to  it,  and 
tliat  Jacox  acquiesced  in  such  construction,  or  at  *least,  [*250] 
did  not  object  to  it,  until  Clark  had  erected  his  mill, 


^S.  C.  ijos^  508. 

"  iddock,  ^jo.s-i,  \61. 

235 


IS.  C.  ijos^  508. 

*  See  Payne  r.  Paddock,  ^jo.s-i,  487. 


251  CASES  m  CHANCERY. 

Cooper  r.  Ulmann. 

dug  the  race,  and  built  the  dam,  at  an  expense  of  some  two 
thousand  dollars.  Jacox  should  have  objected  before.  He 
should  not  have  permitted  Clark,  without  so  much  as  informing 
him  of  his  error,  or  objecting  to  the  course  he  was  taking,  to  go  on, 
and  expend  so  much  money,  contrary  to  the  agreement  between 
them,  if  he  intended  to  seek  redress  in  this  Court,  by  injunc- 
tion, to  prevent  a  diversion  of  the  water,  instead  of  bringing 
an  action  at  law,  for  damages.  His  silence  must,  under  the 
circumstances,  be  construed  into  a  waiver  of  his  right  to  such 
relief  in  equity.  He  was  frequently  present,  while  the  work 
was  going  on,  and  never  made  any  objection  to  it.  Defendant 
did  not  know  he  w^as  dissatisfied,  until  the  service  of  the 
subpoena. 

Injunction  dissolved. 


[*251]   *Benjamin   F.  Cooper  v.  Isaac   J.  Ulmann 

et  al. 

The  assignment  of  a  debt  secured  by  a  mortgage,  carries  with  it  the  mort- 
gage, as  an  incident  to  the  debt,  although  there  is  no  mention  made  of  the 
mortgage  in  the  assignment.  So,  the  assignment  of  a  part  of  a  debt,  or 
of  one  of  several  notes  secured  by  a  mortgage,  carries  with  it  a  propor- 
tional interest  in  the  mortgage,  unless  it  is  agreed  between  the  parties,  at 
the  time,  that  no  interest  in  the  mortgage  is  to  pass  to  the  assignee.-^ 

Where  there  are  several  notes  falling  due  at  different  times,  the  fact  that  one 
note  becomes  due  first,  will  not,  of  itself,  give  it  a  preference  over  the 
rest,  where  the  mortgaged  premises  are  insufficient  to  pay  the  whole.^ 

The  assignor  may,  if  he  see  fit,  give  the  assignee  a  priority  of  payment;  but 
the  law  gives  no  such  priority,  where  there  is  no  understanding  or  agree- 
ment between  the  parties  to  that  effect. 

^See  Martini;.  McReynolds,  6  Mich.,  70;  Dougherty  v.  Randall,  3  id.,  581; 
Wayman  v.  Cochrane,  35  111.,  151;  Olds  r.  Cummings,  31  id.,  188;  Hamilton 
r.  Lubukee,  51  id.,  415;  Fortier  r.  Darst,  31  id.,  212;  Sargeant  v.  Howe,  21 
id.,  148;  Vansant  v.  Allmon,  23  id.,  30;  Pardee  v.  Lindley,  31  id.,  174;  Edg- 
erton  v.  Young,  43  id.,  464;  Kleeman  v.  Frisbie,  63  id.,  482;  White  v.  Sun- 
derland, 64  id.,  181. 

2  English  V.  Carney,  25  Mich.,  178;  McCurdy  v.  Clark,  27  id.,  445. 

236 


riEST  CIRCUIT,  SEPTEMBEE,  1843.  252 

Cooper  V.  Ulmann. 

Bill  to  foreclose  a  mortgage. 

On  the  first  of  October,  1830,  Ullmann  conveyed  the  mort- 
gaged premises  to  Harvey  Hunt  and  James  M.  Hunt,  for 
!B5,500.  Two  liundred  dollars  were  jDaid  down,  and  a  mortgage 
and  six  promissory  notes  were  given  for  the  balance; — one  note 
for  $300  and  interest,  payable  January  1st,  1837,  and  the  others 
for  SI5OOO  each,  payable,  with  interest,  in  one,  two,  three,  four, 
and  five  years.  The  first  two  notes  liad  been  paid.  The  others 
remained  unpaid,  except  $162  indorsed  on  the  third  note,  pre- 
vious to  the  assignment  of  it  by  Ulmann  to  complainant,  by 
tlie  following  instrument: 

"■  I  hereby  assign  to  Benjamin  F.  Cooper  the  note  of  Harvey 
and  James  M.  Hunt,  becoming  due  on  the  first  day  of  January, 
1839,  for  $1,000,  in  payment  of  the  debt  due  from  me  to  Ben- 
jamin F.  Cooper,  as  surviving  partner  of  Zebulon  H.  Cooper, 
deceased,  due  to  him  by  virtue  of  a  judgment  and  decree 
in  the  Supreme  Court  and  Court  of  '"Chancery,  in  the  [*252] 
first  circuit,  of  :^he  State  of  New  York.  The  said  Ull- 
mann, in  consideration  of  the  premises,  hereby  agrees  with, 
and  declares  to,  the  said  Cooper,  that  if  the  mortgaged  property 
referred  to  in  the  said  note  be  encumbered  by  any  encum- 
l)rance  prior  to  the  said  mortgage,  then  that  the  said  Ullmann 
will  continue  liable  to  the  said  Cooper,  to  the  amount  of  the 
judgment  and  decree,  as  if  this  agreement  had  not  been  exe- 
cuted. 

"  Benjamin  F.  Coojpe7\ 
"  Isaac  J.  JJlinann. 

"  July  9th,  1839." 

Harvey  Hunt  was  dead  when  the  note  was  assigned;  and, 
James  M.  Hunt  failing  to  pay  it,  a  suit  was  brought  upon  it  in 
the  Circuit  Court  of  the  United  States,  and  a  judgment  recov- 
ered against  him,  by  complainant,  in  June,  1840,  for  $1,141, 
on  which  an  execution  was  subsequently  taken  out,  and  re- 
turned unsatisfied.  The  three  notes  payable  after  the  one 
assigned  to  complainant,  still  belonged  to  Ulmann,  and  the 

237 


253  CASES  m  CHANCERY. 

Cooper  V.  Ulmann. 

mortgaged  property  was  not  sufficient  to  pay  both  Ulmann  and 
complainant. 

£^.  C.  Seaman^  for  complainant. 

The  assignment  of  the  note  to  Cooper,  carried  with  it  so  much 
of  the  mortgage  as  was  necessary  to  pay  it.  The  mortgage  is 
an  incident  to  the  debt,  which  it  was  given  to  secure;  and  the 
assignment  of  the  debt  carries  with  it  the  mortgage.  The  notes 
must  be  paid  oiit  of  the  proceeds  of  the  mortgaged  premises, 
in  the  order  they  became  due,  Mechmiics^  Bank  v.  Bank  of 
Niagara,  9  Wend.  R.  410;  1  Hopk.  R.  569. 

H.  H.  Emmons,  for  defendant  Ulmann. 

The  mortgaged  premises  being  insufficient  to  pay  all  of  the 
notes,  they  must  be  paid  j»:>w  rata.     Priority  in  time  of 

[*253]  ^payment  does  not  give  priority  of  right.  Donley  v. 
Ilays,    17   Serg.  &  Rawle  R.  400.     The  complainant 

mio-ht  have  collected  his  debt  on  his  execution,  and,  having 

failed  to  do  so,  he  has  lost  his  lien  on  the  property,  as  against 

Ulmann. 

The  Chancellor.  The  assignment  of  a  debt,  secured  by  a 
mortgage,  carries  with  it  the  mortgage  as  an  incident  to  the 
debt,  although  there  is  no  mention  made  of  the  mortgage  in  the 
assi<j:nment.  So,  the  assignment  of  a  part  of  a  debt,  or  of  one 
of  several  notes  secured  by  a  mortgage,  carries  with  it  a  propor- 
tional interest  in  the  mortgage,  unless  it  is  agreed  between 
the  parties,  at  the  time,  that  no  interest  in  the  mortgage  is  to 
pass  to  the  assignee.  Green  v.  Ilarf,  1  J.  R.  580;  Pattison  v. 
Hall,  9  Cow.  R.  747. 

The  only  question  in  the  present  case  arises  out  of  the  inad- 
equacy of  the  mortgaged  premises  for  the  payment  of  both 
complainant  and  Ulmann.  Shall  they  be  paid  jpro  rata,  or 
fihall  a  peference  be  given  to  complainant's  debt,  and  he  be  paid 
first,  leaving  the  balance  to  be  applied  on  what  is  due  to 
Ulmann?  The  mere  fact  that  complainant's  note  was  the.first 
to  become  due,  will  not,  of  itself,  give  it  a  preference  over  the 
238 


FIEST  CIRCUIT,  SEPTEMBER,  1843.  254 

Cooper  V.  Ulmann. 

other  notes.  It  was  so  decided,  and  I  think  correctly,  in  Donley 
V.  Ilays^  17  Serg.  &  Rawle  R.  400.  In  that  case  a  mortgage, 
and  seven  accompanying  bonds,  payable  at  different  periods, 
liad  been  given  to  secure  a  debt  of  So,036,  and  the  mortgagee 
had  assigned  four  of  the  bonds  to  different  individuals,  retain- 
ing three  himself.  The  mortgaged  premises  were  sold  for 
$2,000,  and  the  question  was,  whether  the  several  bonds  should 
be  paid  in  the  oi-der  in  which  they  became  due,  or  jpro  rata. 
The  Court  decided  they  should  be  paid  fro  rata.  There  was 
no  guarantee,  no  promise  or  representation  of  priority 
of  payment  in  the  case.  There  is  no  conflict  '^between  [*254] 
this  case  and  The  Mechanics'  Bank  v.  Bank  of 
Niagara^  9  Wend.  R.  410.  On  the  contrary,  this  last  case,  so 
far  as  any  inference  can  be  drawn  from  it,  would  seem  to  l)e  a 
cdufirniation  of  the  principle  decided  in  Donley  v.  Hays.  The 
case  was  this:  $1,933,  part  of  a  bond  and  mortgage  for  §2.250, 
was  assigned  to  pay  a  debt;  and  the  mortgaged  premises  being 
afterwards  sold,  brought  $1,350,  only.  The  question  was, 
whetlier  the  $1,350  belonged  to  the  assignee,  or  must  be  divi- 
ded, ^j»ro  7'ata,  between  him  and  the  mortgagee.  The  Superior 
Court  of  the  City  of  New  York  decided  in  favor  of  2ipro  rata 
distribution  of  the  money;  but  the  judgment  was  afterwards 
reversed  by  the  Supreme  Court,  on  a  writ  of  error.  The 
reversal,  however,  was  not  upon  the  ground  that  an  assignment 
of  a  part  of  a  debt,  secured  by  a  mortgage,  gives  to  the  assignee 
a  right  to  exhaust  the  mortgage  security  to  satisfy  his  part  of 
the  debt;  but  that,  from  the  very  terms  of  the  assignment 
itself,  in  that  particular  case,  it  appeared  such  must  have  been 
the  intention  of  the  parties,  at  the  time  of  making  tlie  assign- 
ment. The  assignor  may,  if  he  see  fit,  give  the  assignee  a  pri- 
ority of  payment;  but  tlie  law  gives  no  such  priority,  where 
there  is  no  understanding  or  agreement  between  the  parties,  to 
that  effect.  The  note,  on  its  face,  refers  to  the  mortgage,  and 
is  payable  to  Ulmann  or  bearer.  By  the  vvritten  assignments 
it  was  to  be  received,  not  as  security,  but  in  payment  of  the 
debt  due  from  Uhnann  to  comphiinant,  as  surviving  part- 
ner of  Zebnlon  II.  Cooper,  deceased;  and  Uhnaim  agreed  his 

230 


255  CASES  IX  CHAls^CEEY. 

Woodbury  r.  Lewis. 

liabilit}'  to  pay  tlie  debt  should  continue,  if  there  was  any  prior 
encumbrance  of  the  morti^aged  premises.  It  is  evident,  from 
the  assignment,  tlie  note  was  to  be  taken  as  absolute  payment 
of  the  debt,  unless  it  should  turn  out  there  was  a  prior  encum- 
brance; but  it  is  not  so  clear  that  its  payment  was  to  be 
[*255]  preferred  to  the  other  notes,  in  case  *it  should  be  found 
necessary  to  resort  to  the  mortgaged  premises  for  their 
payment.  The  testimony  of  Hunt,  however,  who  was  present 
at  the  time,  removes  all  difficulty  on  this  point.  He  says  he 
understood  from  both  parties,  that  the  mortgage,  or  so  much 
of  it  as  was  necessary  to  secure  to  complainant  the  payment  of 
his  note,  was  assigned.  He  also  says  Ulmann  afterwards  told 
him  complainant  had  a  lien  on  the  mortgaged  premises,  to  the 
amount  of  the  note. 

There  must  be  a  reference  to  a  Master  to  compute  the  amount 
due  complainant,  for  jDrincipal  and  interest,  on  the  note  held  by 
him;  and,  on  the  coming  in  of  the  Master's  report,  a  decree 
must  be  entered,  giving  complainant  a  priority  of  payment 
out  of  the  mortgaged  premises. 


['='256]     *Cephas  G.  Woodbury  v.  Judah  Lewis. 

The  act  of  1840,  for  the  foreclosure  of  mortgages,  requires  the  redemption 
money  of  the  premises  sold  to  be  paid  to  the  register  of  deeds,  and  to  no 
other  person;  and  it  is  his  duty,  upon  such  payment,  to  destroy  the  deed, 
and  pay  over  the  money  to  the  purchaser,  his  heirs  or  assigns. 

The  register  of  deeds  has  no  risrht  to  receive  anything  but  mone^^  in  redemp- 
tion of  property  sold.  His  powers  are  limited  to  receiving  the  money, 
and  destroying  the  deed.  He  is  a  special  agent  for  these  purposes,  only, 
and  his  acts  are  not  binding  on  the  purchaser,  when  he  exceeds  or  departs 
from  his  authority,  without  the  assent  of  the  purchaser. 

Where  a  bill  was  filed  to  have  a  deed  of  mortgaged  premises  cancelled,  on 
the  ground  that  the  redemption  money  had  been  paid,  audit  appeared  that 
the  register  of  deeds  had  received  a  check  for  the  amount  from  complainant, 
it  was  held  to  be  no  payment,  and  the  bill  was  dismissed.^ 

'  As  to  payment  by  draft  or  cheek,  certificate  of  deposit,  &c.,  see  generally, 
240 


FIRST  CIRCUIT,  SEPTEMBER,  1843.  257 

Woodbury  v.  Lewis. 

Where  the  register  of  deeds  had  received  a  check  from  complainant,  in  re- 
demption of  mortgagred  premises,  and  given  him  areceipt  for  the  same,  aa 
money,  on  behalf  of  deiendant,  who  was  the  purchaser  at  the  mortgage 
sale,  he  was  held  to  be  a  competent  witness  for  either  party,  as  being 
equally  liable  to  both. 

The  receipt  of  the  register  of  deeds  is  not  conclusive  evidence  of  the  payment 
of  redemption  money,  as  against  a  purchaser. 

Tins  was  a  bill  to  have  a  deed  executed  on  a  statutory  fore- 
closure of  a  mortgage,  given  up  and  cancelled,  on  the  ground 
that  the  mortgaged  premises  were  redeemed,  after  the  sale,  and 
before  the  time  of  redemption  expired. 

£.  B.  Harrington^  for  complainant. 

A.    W.  Jjiiel,  for  defendant. 

The  CnANCELLOR.  The  premises  in  question  were  mort- 
gaged to  Lewis  on  the  4th  day  of  March,  1837,  by  one  "William 
Walker;  and,  on  the  6th  day  of  June,  1839,  they  were 
sold  under  a  power  of  sale  in  the  mortgage,  *and  pur-  [*257] 
chased  for  $110,  bj^  Lewis,  who  received  from  the  officer 
who  sold  the  premises,  a  certificate  for  a  deed  in  one  year, 
unless  they  Avere  redeemed.     On  the  27th  day  of  December, 

1839,  AYoodbury  purchased  the  premises  of  AValker,  and,  on 
the  6th  day  of  June,  1840,  deposited,  as  the  bill  alleged,  $121 
with  George  R.  Griswold,  register  of  Wayne  county,  in  which 
the  land  is  situate,  for  its  redemption.  Lewis  obtained  a  deed 
from  the  officer,  after  the  year  had  expired.  By  his  answei',  he 
denies  that  the  money  was  deposited  \vith  the  register,  and  says 
a  check  for  the  amount,  on  the  Bank  of  Michigan,  and  not 
the  money,  was  deposited.     Griswold's  receipt,  dated  June  6th, 

1840,  for    one   hundred   and    twenty-one   dollars,  being   the 

The  People  r.  Commissioners,  &c.,  19  Mich.,  470:  Beardslee  v.  Horton,  3 
id.,  560;  Burrows  v.  Bangs,  34  id.,  304;  Dodman  v.  Williams.  1  Scam.,  154; 
Mayo  r.  Carmach,  13  111.,  28.);  Strong  c.  King,  35 id.,  9;  Ralston  r.  Wood,  15 
id.,  159;  Snialley  v.  Ed-y,  19  id.,  207;  Stevens  v.  Bradley,  22  id.,  244;  Pret- 
tyman  v.  Barnard,  37  id.,  105;  Leake  v.  Browne,  43  id.,  372;  Hoartt  r.  Rhodes. 
66  id..  351;  Tucker  v.  Conwell,  67  id.,  552;  Gage  v.  Lewis,  68  id.,  604;  Demp- 
ster V.  West,  id.,  613;  Hodgen  t\  Latham,  33  id.,  344. 

Vol.  L— 16  241 


258  CASES  m  CHANCEKY. 

Woodbury  v.  Lewis. 

amount  of  redemption  money,  &c,,  was  admitted  as  evidence 
on  the  part  of  complainant,  by  consent  of  parties;  and 
Griswold  was  examined  as  a  witness  by  defendant,  but  was 
objected  to,  as  incompetent,  by  complainant.  He  states  that 
he  received  a  check  on  the  Bank  of  Michigan  for  the  $121,  and 
not  the  money.  Upon  this  state  of  facts,  it  is  insisted  for  the 
defendant, 

First.  That  the  register  was  not  authorized  to  receive  the 
money  by  the  act  of  March  31st,  1840. 

Secondly.  Admitting  his  authority,  that  he  could  not  re- 
ceive a  check,  or  anything  except  money. 

By  the  revised  statutes,  a  certificate  was  given  to  the  pur- 
chaser, for  a  deed  after  the  time  of  redemption  had  expired ; 
and  the  premises  were  redeemed  by  paying  to  the  j)nrchaser,  or 
officer  who  sold  them,  the  sum  for  whicli  they  were  sold,  witli 
ten  per  cent,  interest.  K.  S.,  501.  The  law  of  1840  requires 
the  officer  or  person  making  the  sale,  forthwith  to  execute  a 
deed  to  the  purchaser,  endorsing  thereon  when  it  will  become 
operative  in  law,  unless  the  land  is  redeemed,  and  then  to  de- 
posit it  in  the  register's  office  of  the  proper  county, 
p258]  where  it  is  to  be  kept  in  *trust  for  the  purchaser,  and  to 
be  delivered  to  him,  unless  the  land  is  redeemed,  and, 
if  redeemed,  then  the  deed  is  to  "  be  destroyed  by  the  register, 
and  the  purchase  money,  and  the  interest  thereon,  allowed  by 
law,  to  be  paid  over  to  the  purchaser,  his  heirs  or  assigns." 
Laws  1840,  p.  145.  The  act  does  not  say  in  express  terms,  the 
redemption  money  shall  be  paid  to  the  register,  but  it  is  clearly 
to  be  implied  from  the  language  that  such  was  the  intention 
of  the  legislature.  It  is  difficult  to  see  how  the  law  could  be 
carried  into  execution  on  any  other  principle.  The  register  is 
to  destroy  the  deed  in  case  of  redemption,  but  how  is  he  t<^ 
know  whether  the  land  has  been  redeemed  or  not,  unless  he  re- 
ceives the  money?  If  it  was  to  be  received  by  the  officer  sell- 
ing the  premises,  or  the  purchaser,  as  provided  by  the  revised 
statutes,  and  not  by  the  register,  the  law  would  have  required 
him  to  cancel  the  deed  only  on  the  certificate  of  the  one  or  the 
other  of  these  persons,  and  not  made  it  his  duty  to  destroy  the 
242 


FIRST  CIECUIT,  SEPTEMBEE,  1843.  259 

Woodbury  v.  Lewis. 

deed,  without  the  means  of  ascertaining  the  money  had  been 
paid,  as  would  be  the  case  if  the  construction  contended  for 
was  correct.  Besides,  tlie  purchase  money,  and  the  interest, 
are  to  be  paid  over  to  the  purchaser,  liis  heirs  or  assigns;  not 
by  the  officer  who  sells,  when  received  by  him,  but  generally, 
and  in  all  cases; — and  that  after  the  deed  had  been  destroyed* 
Now,  as  the  register  is  to  destroy  the  deed,  and  then  the  money 
is  to  be  paid  to  the  purchaser,  it  would  seem  that  it  is  to  be 
paid  by  the  former,  and,  consequently,  that  it  must  be  received 
by  him. 

The  register  should  not  have  received  the  check,  or  any  thing 
but  the  mone3\  The  statute  does  not  authorize  him  to  receive 
anything  else.  His  powers  are  limited  to  receiving  the  money 
and  destroying  the  deed,  and  his  acts  are  not  binding  upon  the 
purchaser,  when  lie  exceeds  those  powers,  or  departs 
from  them  by  receiving  something  else  *tlian  the  [*25!)] 
money,  without  the  assent  of  the  purchaser.  He  is  to 
be  regarded  in  the  light  of  a  special  agent,  who  must  conform 
to  the  authority  with  which  he  is  clothed.  Dickinson  v.  Gil- 
liland^  1  Cow.  E.,  481,  498.  A  sheriff  cannot  discharge  an 
execution,  by  receiving  a  promissory  note,  or  a  draft  in  stisfac- 
tion  of  it.  1  Cow.  E.  46;  4  Cow.  E.  553.  It  would  be  dan- 
gerous in  the  extreme  to  allow  the  sheriff  or  register,  to  receive 
anything  except  the  money,  in  discharge  of  the  debt.  It 
would  be  placing  indulgences  at  their  disposal,  that  might  be- 
come an  article  of  traffic  between  them  and  the  debtor,  to  the 
great  prejudice  of  the  creditor. 

Griswold  is  a  competent  witness  to  prove  that  the  check, 
and  not  the  money,  was  deposited  with  him  when  he  gave  the 
receipt.  His  interest  is  equally  balanced.  The  receipt  is  evi- 
dence against  him,  of  so  much  money  received  b}'  him,  for  the 
]ierson  to  whom  it  belongs,  whether  it  be  complainant  or  de- 
fendant. He  must  account  to  one  or  the  other;  and  it  is  im- 
material which,  so  far  as  he  is  concerned,  for  the  receipt  in 
either  event  would  be  evidence  against  him,  and  the  decree  in 
this  case  would  not  be  evidence  in  his  favor.  Milward  v. 
Ilallett^  2  Caines  E.  77,  and  note,  p.  84. 

243 


260  CASES  IN  CHAE"CERY. 

Godfroy  v.  Disbrow. 

Tlie  receipt  is  not  conclusive  evidence  against  defendant,  of 
the  payment  of  money. 
Bill  dismissed,  with  costs. 


['•■260]  *  James  J.  Godfroy  v.  Heney  Disbrow,  Samuel 
Gerard,    Alexander   Mackingtosh,   ^xeas 
Mackintosh,  James  Mackintosh,  Ann  Hunt,  Jane 
Mackintosh,  Aechange  Shaw,  Catharine  Mack- 
intosh, Eliza  Reynolds,  and  Todd  Reynolds. 

The  ordinance  of  1787,  for  the  government  of  the  Northwest  Tenitorj-,  does 
not  declare  that  a  deed  shall  be  void,  or  that  the  title  to  land  shall  not  pass 
by  it,  unless  such  deed  be  recorded.  The  object  of  all  registry  laws  is  to 
protect  subsequent  honafide  purchasers,  and  there  is  nothing  in  the  ordi- 
nance making  an  unrecorded  deed  void  as  against  the  grantor. 

The  fact  that  a  mortgage  for  purchase  money,  given  at  the  time  the  convey- 
ance was  made,  was  executed  with  all  proper  formality,  raises  the  pre- 
sumption that  the  deed  (which  in  this  case,  had  been  lost,  unrecorded) 
was  likewise  properly  executed.^ 

A  deed  executed  without  a  witness,  is  good  in  equity  as  a  contract  for  the  sale, 
of  land,  and  may  be  enforced  as  such.^ 

Under  the  act  of  June  9th,  1819,  it  is  necessary  for  a  party  who  wishes  to  avoid 
the  efl'ect  of  a  subsequent  conveyance  first  recorded,  to  show  that  the 
grantee,  in  such  conveyance,  had  notice  of  the  prior  conveyance  when  he 
took  his  deed,  or  that  he  had  not  paid  a  good  and  valuable  consideration. 

Where  the  first  purchaser  is  in  possession  of  the  premises,  and  the  second 
purchaser  is  awai-e  of  that  fact  at  the  time  he  purchases,  that  is  sufficient 
notice  to  him  of  the  rights  of  the  first  purchaser;  and  he  must  take  the 
premises  subject  to  all  equities  existing  between  liis  grantor  and  the  first 
purchaser.^ 

1  See  Goodell  r.  Labadie,  19  Mich.,  88. 

'See  Crane  v.  Reeder,  21  Mich.,  24,  deed  under  the  law  of  1820. 

A  deed  without  subscribing  witnesses  is  good  as  between  the  parties  thereto, 
witnesses  being  required  only  for  the  purpose  of  registry.  Dougherty  v.  Ran- 
dall, 3  Mich.,  581. 

*See  Rood  v.  Chapin,  ante,  79,  and  note. 

244 


FIRST  CIECUIT,  SEPTEMBER,  1843.  261 


Godiroy  v.  Disbrow. 


Although  a  party  may  not  himself  be  a  bona  fide  purchaser  without  notice, 
yet,  if  his  grantor  was  such  purchaser,  the  former  is  entitled  to  all  his 
rights,  and  the  protection  which  the  law  would  give  him. 

Tlie  presumption  is,  that  a  subsequent  purchaser,  who  has  got  his  deed  first 
recorded,  is  a  Una  fide  purchaser  without  notice,  until  the  contrary  is 
made  to  appear. 

Where  there  is  an  adverse  possession,  the  legal  title  cannot  pass  by  a  convey- 
ance from  a  person  out  of  possession.' 

Tins  was  a  bill  filed  to  establisli  a  lost  deed,  and  praying 
that  the  several  defendants  claiming  under  the  grantor  might 
be  compelled  to  release  to  complainant. 

*Tlie  facts  of  the  case  appear  sufiiciently  in  the  opiu-  [*261] 
ion  of  the  Court. 

Fraser,  Goodwin  <&  3IcCleUand,  for  complainant. 

A.  D.  Fraser. 

I.  This  is  a  clear  case  for  equity  jurisdiction,  on  several 
grounds;  and  especially  on  the  ground  of  the  loss  of  the  deed 
from  Mackintosh  to  Godiroy. 

It  is  a  well  settled  principle  that  if  a  lost  deed  concerns  the 
title  to  real  estate,  it  is  competent  to  come  into  this  Court  and 
establish  the  possession,  or  to  have  a  re-execution  of  a  lost  deed. 
1  Madd.  Ch.  23;  2  Atk.  R.  61;  IJ.  Ca.  417. 

It  is  upon  this  principle  that  grants  are  presumed,  or  sup- 
plied, in  support  of  a  long  possession,  and  equity  will  not  per- 
mit such  possession  to  be  disturbed.  1  Madd.  Ch.  25;  Jer. 
Eq.  362;  1  Vern.R.  195;  2  Yern.  R.  390,  516;  1  Pet.  R.  241. 

II.  The  Court  will  interfere  to  vacate  a  deed  which  throws 
a  cloud  over  complainant's  title.  17  Yes.  R.  Ill;  5  Paige  R. 
493;  2  Paige  R.  435;  2  Story  Eq.  8,  17. 

'See,  also,  Bruckner  v.  Lawrence,  1  Doug.,  19;  Hubbard  v.  Smith,  2 
Mich.,  207;  Crane  r.  Reeder,  21  Mich.,  24,  82.  The  grantee  could,  however, 
enforce  his  rights  in  the  name  of  his  grantor.  Stockton  v.  WilUams,  1  Doug., 
6-16.     See,  also.  Crane  v.  Reeder,  supra. 

The  common  law  rule  above  laid  down  in  the  principal  case  is  now  changed 
by  statute.    Comp.  Laws,  1871,  §  4,209. 

245 


262  CASES  IN  CHANCEEY. 

Godfrey  v.  Disbrow. 

III.  It  is  conceived  that  this  Court  had  also  jurisdiction 
under  the  statute  of  1840,  to  quiet  the  complainant's  title,  and 
to  decree  a  release  of  defendant's  pretended  interest  in  the  prem- 
ises.    Laws  1840,  p.  127. 

IV.  The  complainant  is  entitled  to  the  relief  sought,  hav- 
ing been  in  possession-  claiming  adversely  at  the  time  of  the 
several  transfers  subsequent  to  the  conveyance  under  which  he 
claims  title.  The  doctrine  of  adverse  possession  was  fully  rec- 
ognized as  law  in  this  State,  by  the  Supreme  Court,  in  the  case 
of  Bruckner  v.  Lawrence,  MS.  March,  1843. 

Y.     The  statute  of  limitations  is  available  to  protect  the 
possession   of   a  party   which  has   been   continued  and   ad- 
verse 
[^•262]      "VI.     The  possession  of  complainant  was  notice  of 
his  claim. 

H.  T.  Rachus,  for  defendant  Disbrow. 

The  complainant  is  not  entitled  to  the  relief  prayed  for. 

I.  The  bill  and  evidence  fail  to  disclose  that  he  has  or  ever 
had  a  deed  of  the  premises  in  question,  which  could  avail  as 
against  the  defendant. 

1.  It  does  not  appear  that  the  deed,  which  is  set  up  in  the 
bill  as  the  foundation  of  his  title,  was  executed  in  accordance 
with  the  ordinance  of  1787,  and  the  law  in  force  respecting  the 
execution  of  such  instruments.  There  is  no  proof  that  the 
deed  had  the  requisite  witnesses,  &c.  Yide  Ordinance  of  1787 
(R.  S.  p.  24.) 

2.  The  deed  from  Mackintosh  to  Godfroy,  (if  any  was  ever 
executed)  is  void  for  want  of  being  recorded.  Ordinance  of 
1787,  (R.  S.  p.  24;)  Laws  1820,  p.  157. 

II.  The  fact  that  the  bill  has  been  taken  as  confessed 
against  Gerard,  is  of  no  avail.  He  is  a  non-resident  defend- 
ant, and  never  was  served  with  process.  Moreover,  Disbrow, 
his  grantee,  by  his  answer,  denies  notice  to  Gerard  and  to 
himself,  and  complainant  must  therefore  substantiate  his  case. 

III.  Disbrow  is  entitled  to  all  the  rights  of  his  grantor, 
Gerard,  whether  he  himself  was  affected  with  notice  or  not. 

246 


FIRST  CIRCUIT,  SEPTEMBER,  1843.  263 

»  Godfroy  v.  Disbrow. 

Iso  notice  is  proven  as  to  Gerard,  who  must,  therefore,  be  pre- 
sumed to  have  been  a  bona  fide  purshaser  without  notice. 

IV.  Neither  the  statute  of  limitations  nor  adverse  posses- 
sion, can  be  tlie  ground  of  aliirmative  relief  in  this  Court. 
Adverse  possession  is  proi)erly  tried  by  jury  as  a  question  of 
fact. 

Y.     If  the  adverse  possession   of  complainant   is   of  an}- 
avail,  it  can  only  be  as  to  those  parts  of  the  land  where 
■'"there  has  been  an  actual  pedis  -possesuo.     It  can  avail  [*263] 
as  to  no  other  parts  of  the  premises. 

The  Cuancellor.  The  bill  states  that  Gabriel  Godfroy,  on 
the  10th  day  of  October,  1844,  purchased  the  premises  in  ques- 
tion, situate  on  the  River  Raisin,  of  Angus'  Mackintosh,  for 
$1,000;  and  that  Mackintosh  executed  a  deed  to  him,  which 
was  not  recorded,  and  has  since  been  lost.  To  secure  the  pur- 
chase money,  Godfroy  executed  a  bond  and  mortgage  of  the 
premises  to  Henry  I.  Hunt,  the  son-in-law  of  Mackintosh, — 
Hunt  be...g  an  American  citizen  residing  in  Detroit,  and  his 
father-in-law,  a  British  subject,  residing  in  Canada,  opposite 
Detroit.  The  bond  and  mortgage  w^ere  made  to  Hunt,  in  con- 
sequence of  the  late  war  between  the  United  States  and  Great 
Britain,  and  to  prevent  any  difficulty  in  the  collecting  of  the 
money.  Godfroy  took  immediate  possession  of  the  premises, 
and  he  and  his  grantee,  the  complainant,  have  been  in  posses- 
sion from  that  time  to  the  present,  and  have  erected  valuable 
buildings,  and  made  other  valuable  imj)rovements.  In  1S35, 
(iabriel  Godfroy  sold  to  complainant.  In  1827,  Mackintosh, 
with  his  lamily,  left  Canada,  and  went  to  Scotland  to  reside, 
where  he  afterwards  died.  In  July,  1835,  Alexander  Mackin- 
tosh, one  of  the  heirs  of  Angus  Mackintosh,  conveyed  the 
premises  to  Samuel  Gerard  of  Montreal,  who,  April  25th, 
1836,  conveyed  them  to  Disbrow.  The  deed  from  Alexander 
]\[ackintosli  to  Gerard  was  recorded,  November  12th,  1835,  and 
the  one  from  Gerard  to  Disbrow,  May  13th,  1836.  The  bill  is 
iiled  against  Disbrow,  Gerard,  and  the  heirs  at  law  of  Angus 
Mackintosh.     Disbrow  is  the  only  one  of  the  defendants  that 

247 


264  CASES  m  CHANCERY. 

— -  ^  - 

Godfroy  v.  Disbrow. 

has  appeared  and  answered,  and  the  bill  has  been  taken  as  con- 
fessed by  the  other  defendants,  all  of  whom,  except  Ann 
[*264]  Hnnt  and  Catharine  Mackintosh,  on  whom  the  *subpoena 
was  personally  served,  are  non-resident  defendants,  and 
have  been  brought  into  Court  by  advertisement  under  the 
statute. 

Disbrow,  in  his  answer,  denies  all  notice  of  the  conveyance 
from  Angus  Mackintosh  to  Gabriel  Godfroy,  and  insists  that 
both  he  and  his  grantor,  Gerard,  are  bona  fide  purchasers, 
without  notice. 

The  existence  and  loss  of  the  deed  from  Angus  Mackintosh 
to  Gabriel  Godfroy,  are  fully  established  by  the  positive  testi- 
mony of  Godfroy,  and  the  voluminous  circumstantial  testi- 
mony in  the  case.  But  it  is  insisted  that,  under  the  ordinance 
of  1787,  it  was  necessary  that  the  deed  from  Mackintosh  to 
Godfroy  should  be  recorded,  in  order  to  pass  the  title.  I  do 
not  so  read  the  ordinance.  It  does  not  declare  the  deed  shall 
be  void,  or  the  title  shall  not  pass,  unless  it  is  recorded.  The 
object  of  all  registry  laws  is  to  protect  subsequent  bona  fide 
purchasers.  It  would,  therefore,  be  a  harsh  construction  of  the 
(ordinance,  where  the  grantee  had  neglected  to  havx  his  deed 
recorded,  to  say  it  should,  for  that  reason,  be  void  between  him 
and  the  grantor.  There  is  nothing  in  the  ordinance  requiring 
such  a  construction  to  be  given  to  it.     1  Blackford  R.  162. 

It  is  further  objected  that  it  does  not  a]3pear  from  the  evi- 
dence  whether    the    deed   was    properly  executed,   or  what 
premises,  or  what  estate  in  them  was  conveyed.     Godfroy  states 
explicitly  he  purchased  the  farm  in  question  from  Angus  ]\Iack- 
intosh,  in  1814,  and  that  Mackintosh  executed  to  him  a  deed 
for  it,  which  is  lost;  and  that  he  was  the  owner  of  the  farm  in 
fee  simple,  from  1814  to  1835,  when  he  sold  it  to  complainant. 
It  is  true  he  says  nothing  about  any  witnesses  to  the  deed. 
The  question  does  not  appear  to  have  been  asked  him.     There 
is,  however,  I  think,  sufficient  evidence  before  the  Court, 
[*265]  to  *warrant  the  conclusion  it  was  properly  executed. 
The  mortgage  given  at  the  same  time,  and  which  has 
been  found  since  the  witness  was  examined,  appears  to  have 
248 


FIRST  CIRCUIT,  SEPTEMBER,  1843.  2G0 

Godfroy  v.  Disbrow. 

been  executed  with  all  proper  formality,  and  it  is  reasonable  to 
suppose  the  same  formality  was  observed  in  the  execution  of 
the  deed.  If  there  were  no  witness,  it  would  be  good  in 
equity  as  a  contract  for  the  sale  of  the  land,  and,  as  such, 
niii,'ht  be  enforced  airainst  the  heirs  of  Anirus  Mackintosh. 

By  "  an  act  in  addition  to  an  act  entitled  '  an  act  concerning 
deeds,' "  adopted  by  the  Governor  and  Judges  of  the  territory 
of  Michigan,  June  9,  1819,  all  deeds  previously  given,  and 
not  recorded,  were  declared  to  be  fraudulent  and  void  against 
subsequent  purchasers  and  mortgagees,  unless  recorded  on  or 
before  the  first  day  of  December,  1821.  To  get  rid  of  the 
legal  effect  of  a  subsequent  conveyance  first  recorded,  it  is 
necessary  to  show  the  second  grantee  had  notice  of  the  prior 
conveyance  when  he  took  his  deed,  or  that  he  has  not  paid  a 
good  and  valuable  consideration.  "Where  the  first  purchaser  is 
in  possession  of  the  premises,  and  the  second  i3urchaser  is  aware 
of  that  fact  at  the  time  he  purchases,  that  is  suflicient  notice 
to  him  of  the  rights  of  the  first  purchaser;  and  he  must  take 
tlie  premises  subject  to  all  equities  existing  between  his  grantor 
and  the  first  purchaser.  Bood  v.  Chaj)in,  a7ite,  79.  Disbrow 
knew  complainant  was  residing  on  the  land  when  he  purchased 
of  Gerard.  lie  therefore  took  his  deed  subject  to  all  equities, 
if  any,  existing  between  complainant  and  Gerard.  He  was  not 
a  honajide  purchaser  without  notice.  Still,  if  his  grantor  was 
such  purchaser,  he  is  entitled  to  all  his  rights,  and  to  that  pnj- 
tection  which  the  law  would  give  Gerard.  There  is  no  evidence 
showing  Gerard  had  notice  of  complainant's  title;  when  he 
purchased,  or  that  he  knew  complainant  was  in  posses- 
sion of  the  *premises.  The  bill  has  been  taken  as  con-  [*266] 
fessed  against  him;  but  as  he  is  a  non-resident, 
defendant,  and  has  not  appeared,  it  is  no  evidence  against  him, 
much  less  against  Disbrow,  his  grantee,  who  has  appeared,  and 
]iut  in  an  answer  denying  notice  to  his  grantor,  as  well  as  to 
liiniself  The  presumption  of  law  is,  that  a  subsequent  pur- 
chaser, who  has  got  his  deed  first  recorded,  is  a  hona  fide 
purchaser  without  notice,  until  the  contrary  is  made  to  appear. 

There  is  another  ground,  however,  on  which  the  complainant 

249 


267  CASES  m  CAHNCEEY. 

Scbwarz  v.  Wendell. 

is  entitled  to  the  relief  he  asks  against  the  deed  from  Alexander 
Mackintosh  to  Gerard.  It  is  this.  By  reason  of  the  adverse 
possession  of  complainant,  when  this  deed,  as  well  as  the  one 
from  Gerard  to  Disbrow,  was  executed,  the  legal  title  did  not 
pass.  Bruckner  v.  Lawrence^  MS.  Sup.  Court,  March,  1843. 
It  is  unnecessary  to  inquire  whether,  if  the  legal  title  had  been 
in  Alexander  Mackintosh,  when  he  conveyed  to  Gerard,  an 
equitable  title  would  have  passed  by  the  deed,  notwithstand- 
ing the  adverse  possession.  It  would  not,  so  as  to  bar  a  prior 
equity. 

The  defendants  must  release  to  complainants,  and  pay  costs. 


f*267]  *JOHN   E.  SCHWAKZ,  CATHARIIfE   SCHWARZ,  AND 

EuROTAS  P.  Hastings  v.  Tunis  S.  Wendell. 

The  general  rule  is,  that  whatever  is  responsive  to  the  bill  is  evidence  for,  as 
well  as  against  the  defendant.^ 

If  a  fact  stated  in  the  bill,  and  answered  by  defendant,  is  material  to  complain- 
ant's case,  or  is  a  circumstance  from  which  a  material  fact  may  be  inferred, 
the  answer,  in  such  case,  is  responsive  to  the  bill,  and  is  evidence  in  the 
cause. 

An  answer  may  sometimes  be  evidence  of  a  fact  not  stated  in  the  bill,  as  when 
the  bill  sets  forth  part  of  complainant's  case  only,  instead  of  the  whole,  and 
the  part  omitted,  and  stated  m  the  answer,  shows  a  different  case  from  that 
made  by  the  biU,  and  is  not  in  avoidance  merely. 

Where  an  answer  does  not  show  a  different  case  from  that  set  up  in  the  bill, 
but  sets  up  new  matter  in  avoidance,  it  is  not  evidence  of  such  new  mat- 
ter.2 

A  trustee  is  not  allowed  to  deal  with  the  cestui  que  trust  as  with  a  third  per- 
son, and  purchases  of  trust  property  made  by  him,  will  not  be  sustained, 

»See  Robinson  v.  Cromelein,  15  Mich.,  316;  Roberts  v.  Miles,  12  id.,  297. 

''See  Millard  v.  Ramsdell,  Harr.  Ch.,  73;  Attorney  General  v.  Oakland 
County  Bank,  ante,  90:  Van  Dyke  v.  Davis,  2  Mich.,  144;  Hurst  v.  Thom, 
id.,  213. 

250 


FIRST  CIRCUIT,  SEPTEMBER,  1843.  268 

Schwarz  v.  Wendell. 

unless  the  Court  is  satisfied  that  he  has  acted  throughout  with  the  most 
perfect  fairness,  and  taken  no  advantage  of  his  peculiar  relation.^ 

The  defendant  W.,  a  trustee,  having  an  opportunity  to  make  what  it  was  sup- 
posed would  be  an  advantageous  purchase  for  his  cestui  que  trust,  a  mar- 
ried woman,  of  the  remaining  two-thirds  of  laud  of  wliich  she  owned  an 
undivided  third,  refused  to  make  it  without  an  equal  share  of  the  profits, 
and,  by  his  advice,  and  that  of  her  husband,  the  cestui  que  trust  was  in- 
duced to  make  a  note  for  $4,000,  to  raise  money  for  the  purchase,  which 
was  indorsed  by  W.  and  finally  paid  out  of  the  trust  funds;  and  the  hus- 
band, March  7th,  18:36,  without  consulting  the  cestui  que  trust,  agreed 
with  W.  on  her  behalf,  that  he  should  have  half  of  the  profits  of  the  prop- 
erty to  be  purchased,  deducting  traveling  expenses,  &c.  attending  the 
same,  and  if  he  should  not  succeed  in  purchasing,  that  his  expenses  should 
be  paid;  and  W.  pui-chased  one  of  the  two-thirds  and  took  a  conveyance 
of  it  to  himself,  as  trustee.  An  offer  being  made  for  the  purchase  of  one- 
third,  W.  advised  the  cestui  que  trust  and  her  husband  to  accept  it,  but 
they  declined:  and  W.  insisting  on  selling  his  share,  they  agreed  to  pur- 
chase from  him,  and  pay  him  what  would  be  his  share  of  the  profits,  by 
assigning  a  certain  bond  and  mortgage,  and  giving  a  note  for  the  balance. 
When  the  assignment  was  drawn  up,  the  cestui  que  trust  declined  execut- 
ing it,  alleging  that  she  wanted  the  property  for  other  purposes,  and  also 
that  an  accomit  presented  by  W.  was  too  high.  W.  then  requested  her 
to  set  off  his  share  of  the  land,  and  appoint  another  trustee.  She 
then  agreed  to  purchase  his  share  *on  the  conditions  previously  [*268J 
agreed  to,  and  a  new  trustee  was  appointed.  In  this  settlement 
a  note  was  given  by  the  cestui  que  trust  and  her  new  trustee,  for  $3,980.24, 
to  pay  the  account  which  W.  had  presented  for  his  services.  The  Court 
set  aside  the  agreement  of  March  7, 1836,  and  the  sale  by  W.  to  the  cestui 
que  trust,  and  decreed  that  W.  should  procure  the  note  for  $3,980.24, 
(which  he  had  transferred.)  to  be  canceled,  or  else  that  the  amount  of  it, 
with  interest  from  the  day  it  fell  due,  should  be  charged  agamst  him  in 
the  account  to  be  taken  of  his  trust,  and  that  he  should  be  allowed  a  rea- 
sonable compensation  for  his  services  as  trustee. 

A  defendant  cannot,  by  liis  answer,  vary  the  terms  of  a  widtten  contract. 

The  agreements  of  the  husband  of  a  cestui  que  trusty  in  relation  to  the  trust, 
are  not  binding  upon  her. 

Where  a  bill,  asking,  among  other  things,  relief  against  a  note,  was  filed 

^See  Sheldon  v.  Rice,  30  Mich..  296;  McDonald  v.  Fithian,  1  Gilm.,  269; 
Dennis  v.  MoCag'g,  32  lU.,  429;  Fish  v.  Cleland,  33  id.,  238;  Casey  v.  Casey,' 
14  id.,  112;  Fairmiin  v.  Boom,  29  id.,  75;  Merr}Tnan  v.  Da\-id,  31  id.,  404; 
Kerfoot  v.  Hjmian,  52  id.,  512;  Cottom  r.  Holliday,  59  id.,  176;  Elyr.Hanford, 
65  id..  267;  Mason  r.  Bauman,  62  id.,  76;  Tewksbury  r.  Spruance,  75  id.,  187. 

But  parties  sustaining  fiduciary  relations  to  each  other  may  make  amicable 
settlements  of  their  accounts.   Hooper  v.  Hooper,  26  Mich.,  435. 

251 


269  CASES  IN  CHANCERY. 

Scliwarz  v.  Wendell. 

within  three  years  and  a  half  from  the  time  it  was  given,  and  within  six 
months  after  it  became  due,  it  was  held,  that  the  delay  was  not  unreason- 
able, and  was  no  ground  for  refusing  relief.^ 

A  trustee  is  entitled  to  a  reasonable  compensation  for  his  time  and  services . 

The  bill  states  that  Catharine  Schwarz,  wife  of  John  E. 
Schwai'z,  on  the  eleventh  day  of  February,  1823,  was  entitled 
to  one  undivided  third  part  of  all  the  real  and  personal  estate 
of  her  late  father,  Abraham  Sheridan,  deceased,  and  that  she 
and  her  husband,  the  said  John  E.,  on  that  day,  by  an  indent- 
ure of  two  parts,  conveyed  to  Isaac  Wampole  all  her  interest  in 
the  real  estate  aforesaid,  for  her  sole  use  and  benefit,  and  sub- 
ject to  her  appointment;  and  that,  on  the  14th  day  of  October, 
1828,  they  assigned  to  him,  in  trust  as  aforesaid,  a  bond  and 
mortgage  for  $10,000.  That,  on  the  27th  day  of  April,  1829, 
the  defendant,  Wendell,  was  appointed  trustee,  in  the  place  of 
Wampole,  and  continued  such  until  tlie  28th  day  of  January, 
1837,  when  the  complainant,  Hastings,  was  appointed. 

That,  on  the  6th  day  of  March,  1836,  Wendell,  who  was 
then  acting  as  trustee,  inquired  of  John  E.,  whether  it 
was  probable  that  the  two-third  parts  of  seventeen 
p269]  *in-lots  and  four  out-lots  in  Erie,  Pennsylvania,  held  in 
common  by  Catharine,  and  two  other  heirs  of  Abraham 
Sheridan,  deceased,  residing  in  Philadelphia,  could  be  bought; 
adding,  that  he  had  received  an  offer  from  Captain  John  F. 
Wight,  for  the  whole  of  said  property,  and  that,  perhaps, 
twenty-five  or  thirty  thousand  dollars  could  be  obtained  for  it, 
but  that  no  person  would  purchase  the  undivided  third  part 
belonging  to  Catharine  alone.  John  E.  replied  it  w-as  probable 
they  might  be  purchased,  if  the  owner  had  not  heard  of  the 
sudden  rise  of  property  in  the  western  country,  and  they  should 
l)e  offered  money.  Wendell  then  asked  him  what  share  he, 
Jolm  E.,  would  allow  him,  if  he  would  raise  the  money,  go  to 
Philadelphia,  and  purchase  one  or  both  of  said  shares.  John 
E.  replied,  he  would  allow  him  a  liberal  compensation  for  his 
time  and  trouble,  and  would  pay  all  his  expenses.     This,  and 

^  See  DeAnnand  v.  Phillips,  ante,  186. 
252 


FIEST  CIECUIT,  SEPTEMBEE,  1843.  270 

Schwarz  v.  Wendell. 

several  otlier  offers,  AVendell  declined,  proposing,  at  the  same 
time,  to  raise  the  money,  and  make  the  purchase,  if  John  E. 
would  allow  him  one-half  of  the  profits;  to  which  John  E., 
without  consulting  with  Catharine,  finally  assented.  On  the 
next  day,  at  the  request  of  Wendell,  John  E.  and  Catharine 
came  from  Springwells,  where  they  reside,  to  Detroit,  when, 
for  the  first  time,  "Wendell  required  Catharine  to  execute  a  note 
for  $4,000,  payable  to  him  or  his  order,  at  the  Bank  of  Michi- 
gan, in  ninety  days,  on  which  to  obtain  the  money.  John  E., 
having  understood  Wendell's  proposition  on  the  previous  day  as 
an  offer  to  furnish  the  money,  at  first  protested  against  it.  But 
Catharine,  acting  on  the  advice  of  John  E.  and  Wendell,  was 
finally  persuaded  to  execute  it.  Wendell  then  drew  up  the  fol- 
lowing agreement,  which  was  signed  by  him  and  John  E.,  but 
without  the  knowledge,  direction  or  consent  of  Catharine,  viz: 

"  Memorandum  of  an  agreement  made  this  7th  day  of 
*March,  1836,  between  Tunis  S.  Wendell  and  John  E.  [■■•270] 
Schwarz,  for  himself,  and  on  behalf  of  his  wife,  Catha- 
rine Schwarz,  viz:  It  is  understood  between  the  parties  that 
the  said  T.  S.  Wendell  has  this  day  obtained  a  loan  from  the 
Bank  of  Michigan,  on  a  note  of  Catharine  Schwarz,  endorsed 
by  said  Wendell,  for  $4,000,  for  the  purpose  of  going  to  Phila- 
<lclphia,  to  purchase  the  interest  which  Eichard  J.  Harding  and 
John  G.  Thomas  have  in  17  in-lots  and  4  out-lots  in  the  village 
of  Erie,  Penn'a.,  on  the  best  terms  he  can;  and,  if  he  succeeds, 
then  the  profits  arising  on  said  purchase  are  to  be  equally 
devided  between  the  said  Wendell  and  Catharine  Schwarz,  and 
in  the  same  way  if  he  only  succeeds  in  getting  one  share,  after 
deducting  traveling  expenses,  &c.,  attending  the  same;  but, 
if  said  AYendell  does  not  succeed  in  making  the  purchase,  then 
the  said  Catharine  is  to  pay  the  traveling  expenses  of  said 
AYendell,  and  he  to  charge  nothing  for  his  services  in  attendino- 
to  the  business;  all  the  interest  which  said  Harding  and  Thomas 
have  to  other  lands  and  lots,  if  said  Wendell  can  succeed  in 
purchasing  them,  they  are  to  be  expressly  for  the  benefit  of  said 
Catharine,  and  said  Wendell  is  to  have  no  interest  in  them 
whatever.     In  witness  whereof,"  &c. 

253 


271  CASES  m  CHA^CEET. 

Schwarz  v.  Wendell. 

Wendell  got  the  note  discounted,  went  to  Philadelphia,  and, 
on  the  nineteenth  day  of  the  same  month,  pnrcliased  of  John  G. 
Thomas,  and  Anna  E.  his  wife,  (the  said  Anna  E.  being  one  of 
the  daughters  and  co-heirs  of  Abraham  Sheridan,  deceased,)  all 
their  interest  in  and  to  the  seventeen  in-lots  and  four  out-lots, 
it  being  one  undivided  third  part,  for  $1,200,  and  received  a  con- 
veyance thereof,  reciting  that,  in  consideration  of  the  sum  of 
$1,200,  to  them,  the  said  John  G.  Thomas  and  Anna  E.his  wife, 
paid  by  Tunis  S.  Wendell,  trustee  of  Catharine  Schwarz,  out 
of  the  proper  trust  money  of  the  said  Catharine,  they,  the 
p2Tl]  *said  John  G.  Thomas  and  Anna  E.  did  grant,  bargain 
and  sell  unto  the  said  Tuuis  S.,  trustee  of  the  said  Cath- 
arine, for  her  use,  and  for  her  heirs  and  assigns,  all  their  in- 
terest in  the  said  seventeen  in-lots  and  four  out-lots.  That  he 
made  other  purchases  of  real  estate  for  the  said  Catharine,  and 
paid  therefor  with  the  money  obtained  on  the  $4,000  note;  that 
he  has  never  rendered  an  account  of  the  money  so  received  by 
him,  and  that  no  part  of  it  has  ever  been  repaid  to  complain- 
ants, and  they  believe  a  large  balance  still  remains  in  his  hands. 

The  bill  further  states  that,  on  the  10th  day  of  June,  1836, 
the  note  at  the  bank  became  due;  that  it  was  taken  up  by  a 
new  note  given  by  Catharine,  and  endorsed  jointly  by  Hastings 
and  Wendell,  Catharine  having  procured  Hastings  to  endorse  it 
with  Wendell,  at  Wendell's  request;  and  that  this  last  note 
was  paid  by  Wendell,  on  the  thirty-first  day  of  August  of  the 
same  year,  out  of  the  trust  moneys. 

That,  on  the  third  day  of  September,  1836,  Wendell  stated  to 
John  E.  that  he  had  an  opportunity  of  selling  his  share  in  the 
Erie  property  to  one  Abijah  Fross,  for  $5,000,  but,  if  Catharine 
wished  to  have  it,  he  would  take  a  bond  and  mortgage  she  held 
against  Joshua  Boyer,  in  part  payment,  and  her  note  for  the 
balance.  John  E.  replied,  if  she  was  willing,  he  had  no  objec- 
tion, and  that  he  would  prefer  having  her  purchase  it,  to  a 
stranger.  A  few  days  after,  Charles  H.  SteAvart  called  on  Catli- 
arine  with  an  assignment  of  the  bond  and  mortgage,  and  a  note 
for  the  balance  of  the  $5,000,  to  obtain  her  signature  and  ac- 
knowledgment;   but  she  refused  to  execute  them,  stating  to 

254 


FIEST  CIECUIT,  SEPTEMBER,  1843.  272 

Schwavz  r.  Wendell. 

Mr.  Stewart  that  Wendell  must  wait  until  the  Erie  property 
was  sold  for  his  share,  which  she  thought  he  could  well  afford 
to  do,  as  he  would  receive  a  large  amount  for  a  journey  to 
Philadelphia. 

*The  parties  afterwards  becoming  dissatisfied  with  each  [*272] 
other,  Hastings  was  appointed  trustee  in  the  place  of 
Wendell,  on  the  28th  day  of  January,  1 837.  After  the  deeds 
of  conveyance  for  transferring  the  trust  were  executed,  but 
l)efore  they  were  delivered,  Wendell  required  Catharine,  as  a 
condition  of  his  transferring  the  trust,  to  sign  the  following 
note,  viz: 

"$3,980.24.  Three  years  from  date  I  promise  to  pay  T.  S. 
Wendell  or  bearer  three  thousand  nine  hundred  and  eighty 
dollars  ^-^  for  value  received,  with  interest  at  the  rate  of  six  per 
cent. 

"  Detroit,  Jan'y  28,  1837." 

The  demand  was  a  surprise  on  complainants;  and,  thereupon, 
AVendell  presented  a  memorandum  or  statement  on  a  scrap  of 
paper,  in  w^hich  he  charged  Catharine  for  his  half  of  the  Erie 
purchase,  the  sum  of  $5,000,  and  then  deducted  certain  items 
not  intelligible  to  complainants,  leaving  a  balance  in  his  favor 
amounting  to  the  sum  stated  in  the  note,  and  insisted  she 
should  purchase  his  interest  in  the  property  at  the  price,  and 
on  the  terms  proposed.  She  insisted  it  was  not  just  to  require 
her  to  account  for  such  profits  until  a  sale  was  made  of  the 
property,  and  oftered  to  pledge  her  word  that,  when  a  sale  was 
made,  he  should  receive  his  just  proportion;  but,  he  insisting 
on  its  being  then  arranged,  she  signed  the  note,  to  avoid  further 
difiiculty.  lie  then  required  that  Hastings  should  also  sign  it 
in  his  capacity  of  trustee,  which  he  did,  at  the  request  of 
Catharine. 

To  show  that  the  $4,000  note  in  the  bank  was  paid  with 
trust  moneys,  the  bill  further  stated  that  John  E.,  at  the 
time  AVendell  became  trustee,  was  in  embarrassed  circum- 
stances, and  that   the   trust   moneys,  to  a  large  amount,  with 


2T3  CASES  IN  CHANCERY. 

Scliwarz  v.  Wendell. 

the  assent  of  Catharine,  were  a^^plied  in  payment  of 
[*273]  '-'his  debts;  and  that,  for  the  purpose  of  refunding  the 

moneys  so  paid,  John  E.,  on  the  10th  day  of  March, 
1836,  conveyed  to  Wendell,  as  trustee  of  Catharine,  a  piece  of 
land  deeded  to  him  by  John  B.  Godfroy,  situate  in  the  county 
of  Monroe.  That,  on  the  first  day  of  August,  1836,  John  E. 
made  a  contract  for  the  sale  of  an  undivided  half  of  the  land 
to  Lewis  Godard,  for  $7,500,  of  which  the  sum  of  $3,841.29 
was  paid  in  cash,  and  the  balance  secured  by  a  mortgage;  that 
"Wendell  deeded  the  premises  to  Godard,  and  received  the 
money,  and  took  a  mortgage  from  Godard,  as  trustee,  for  the 
balance;  and  that,  on  the  31st  day  of  August,  1836,  he  gave 
Catharine  credit  for  the  $3,811.29,  in  the  account  he  kept  of 
the  trust  funds,  and  at  the  same  time  charged  her  with  the  pay- 
ment of  the  $4,000. 

The  bill  further  states  that  Wendell,  much  of  the  time,  had 
large  amounts  of  trust  moneys  on  hand,  and  derived  great  ad- 
vantage from  their  use;  that  the  management  of  the  trust 
property  occasioned  but  little  trouble;  and  that  by  the  terms 
of  the  trust,  expressed  in  the  deed  creating  it,  Wampole  and 
Wendell,  his  assignee,  were  to  retain  and  reimburse  themselves, 
out  of  the  rents,  issues,  and  profits,  of  the  trust  j^i'operty,  all 
such  charges  and  expenses  as  they  were  put  to  in  the  execution 
of  the  trust ;  but  no  provision  was  made  for  paying  the  trustee 
for  his  services.  That  there  were  many  incidental  advantages 
attending  the  trust;  that  it  was  understood,  when  the  trust  was 
transferred  to  Wendell,  these  incidental  advantages  should  com- 
pensate him  for  his  services.  That  Wendell  had  sold  the  note; 
that  it  belonged  to  John  L.  Schoolcraft,  who  had  placed  it  in 
the  hands  of  an  attorney  for  collection,  and  that  Catharine  and 

Hastings  had  been  called  on  to  pay  it.  That  the  Erie 
[*274]  property  purchased  of  Thomas  %nd  his  wife  was  not 

worth  over  $2,000,  and  had  not  been  sold. 
The  defendant  put  in  a  plea  of  an  account  stated,  and  agreed 
upon,  at  the  time  the  trust  was  assigned  to  Hastings,  and  of  a 
covenant  from  Hastings  and  John  E.,  in  the  deed  of  assign- 
ment, to  indemnify  him  against  all  acts  done  by  him  as  trus- 

256 


FIllST  CIECUIT,  SEPTEMBER,  1843.  275 

Sclnvurz  v.  Wendell. 

tee,  &c.     The  plea  after  arguuieiit  was  ordered  to  stand  for  an 
answer,  with  leave  to  complainants  to  except.'^' 

Defendant  afterwards  put  in  his  answer,  admitting  the  trust 
as  stated  in  the  bill,  the  assignment  of  it  to  him,  and  that  he 
acted  as  trustee  until  Hastings  was  appointed.  That  early  in 
March,  lS3(i,  John  F.  Wight  applied  to  him  to  purchase  Cath- 
arine's share  in  the  Erie  property,  provided  the  other  two 
shares  could  be  had;  but  he  was  unwilling  to  purchase  one 
share  only,  and  projjosed,  in  case  one  or  both  of  the  other 
shares  could  be  procured,  to  give  for  the  whole  $30,000,  or  for 
two  of  the  shares  $10,000  each.  A  day  or  two  after,  John  E. 
called  on  defendant,  and  said  he  had  received  a  proposition 
from  Wight  for  the  Erie  property,  provided  the  two  shares,  or 
one  of  them,  held  by  the  co-heirs,  could  be  had;  and  defend- 
ant replied  Wight  had  made  the  like  proposition  to  him. 
John  E.  said  the  shares  could  be  bought  low  for  money,  if 
the  owners  had  not  heard  of  the  rise  of  property  at  Erie, — 
probably  for  $2,000,  —  and  proposed  defendant  should  raise 
the  money  and  go  to  Philadelphia  and  purchase  the  interest 
of  the  co-heirs,  in  all  the  real  estate  held  by  them  and  Catha- 
rine as  heirs  of  Abraham  Sheridan,  deceased,  as  well  the 
Erie  property,  -as  other  real  estate;  saying,  if  defendant 
would  do  so,  he  would  pay  him  well  for  it.  Defendant 
refused  to  accept  the  proposition,  but  stated  he 
*would  raise  the  money  from  the  Bank  of  Michigan,  and  [*275] 
make  the  purchase,  for  one-half  of  the  profits;  that  he 
would  procure  the  money  for  ninety  days,  and,  as  Mr.  Wight 
would  pay  down  one-third  of  the  purchase  money,  he  could  pay 
the  money  borrowed,  out  of  it;  and  that  he  should  want  to  take 
with  him  $4,000,  instead  of  $2,000,  to  ensure  the  object,  and 
suggested  to  John  E.  to  converse  with  Catharine  on  the  subject. 
A  day  or  two  after  this  conversation  occurred,  John  E.  called 
again,  and  proposed  to  defendant  to  raise  the  money,  and  pur- 
chase one  or  both  of  the  shares,  and  he  sl.ould  have  one-half  of 
the  purchase,  and  receive  one  half  of  the  ju'ofits,  and,  if  he 

*See  a  former  report  of  this  case,  in  Ilarr.  Ch.  R.  395. 

Vol.  L— 17  257 


276  CxVSES  IN  CHANCERY. 


Schwarz  v.  Wendell. 


failed  in  making  the  purchase,  he  should  receive  nothing  for 
his  time  and  services,  but  should  be  paid  his  expenses.  De- 
fendant accej^ted  the  proposition,  and,  to  save  the  necessity  of 
defendant's  procuring  an  endorser,  to  complv  with  the  bank's 
regulations,  it  was  agreed  the  note  on  which  the  money  was  to 
be  raised  should  be  signed  by  Catharine,  and  endorsed  by  de- 
fendant; and,  to  save  a  multij)licity  of  conveyances,  that  the 
property  should  be  conveyed  to  him  as  trustee — as  well  his  own 
share,  as  that  purchased  for  Catharine.  Soon  after  this  agree- 
ment was  made,  on  John  E.'s  making  some  remark  in  regard 
to  the  profits  defendant  would  receive  on  the  whole  purchase, 
defendant  said  he  would  exclude  from  his  share  in  the  pur- 
chase all  lands  other  than  the  Erie  property;  and,  with  this 
variation,  the  agreement  was  finally  concluded.  A  day  or  two 
after  this,  Catharine  and  John  E.  called  on  defendant,  when  he 
presented  the  note  to  Catharine  for  her  signature,  remarking  it 
was  to  raise  money  to  make  the  purchase,  and  she  signed  it, 
saying  she  hoped  he  would  succeed.  On  this  note,  defendant 
obtained  the  money  of  the  Bank  of  Michigan,  on  his  own  ac- 
count and  responsibility;  and,  to  avoid  all  misapprehen- 
r*276]  sion,  he  drew  ujd  the  "^agreement  in  writing  mentioned 
and  set  forth  in  the  bill,  dated  March  7th,  1836,  which 
was  signed  by  himself  and  John  E,  He  believed  Catha- 
rine had  a  full  understanding  of  the  matter,  when  she  signed 
the  note.  She  was  particularly  interested  in  having  the  pur- 
chase made,  to  effect  an  advantageous  sale  of  her  interest,  and 
John  E.  was  accustomed  to  attend  to  her  business,  in  matters 
relating  to  the  trust.  Defendant  was  in  the  habit  of  commu- 
nicating with  him,  and  through  him  with  Catharine.  Denies 
John  E.  pretested  against  Catharine's  signing  the  note,  or  that 
it  was  not  understood  by  John  E.  that  the  money  was  to  be 
raised  on  a  note  signed  by  her.  Does  not  know  whether 
Catharine  saw  the  written  agreement,  or  not.  The  note  was 
discounted  by  the  bank,  and  defendant  received  on  it  $3,938. 
On  the  19th  day  of  March,  he  purchased  of  John  G.  Thomas  and 
Anna  E.,  his  wife,  the  said  Anna  being  one  of  the  co-heirs, 
lier  undivided  third  of  the  real  estate  held  by  her  and    the 

258 


FIRST  CIECUIT,  SEPTEMBER,  1843.  277 

Schwarz  v.  Wendell. 


Other  co-heirs  of  Sheridan,  for  $3,000,  the  said  estate  embracin*,' 
the  Erie  property,  and  other  property  in  Pennsylvania.  Iler 
interest  in  the  Erie  property  was  estimated  at  $1,200.  lie 
received  a  conveyance  to  himself,  as  trustee  of  Catharine,  and, 
on  his  return  to  Detroit,  gave  full  information  to  John  E.  and 
Catharine,  of  what  he  had  done.  The  balance  of  the  money, 
amounting  to  about  $778,  he  was  about  to  repay  to  the  bank, 
on  the  note,  when  John  E.  stated  that  Catharine  and  himself 
wished  to  use  it,  and  requested  defendant  to  pay  it  to  them,  as- 
suring defendant  that  other  means  should  be  provided  for  paying 
the  note.  He  said  it  should  be  paid  out  of  the  proceeds  of  a  tract 
of  land  belonging  to  him;  and  defendant  let  them  have  th(> 
money.  Wight  did  not  call  and  make  the  proposed  purchase.  J  u 
June,  a  short  time  before  the  note  at  the  bank  became  due,  one 
Abijah  Fross  offered  to  purchase  of  defendant  one-third 
••■of  the  Erie  property,  for  $10,000; — one-third  to  be  paid  [••277] 
down,  and  the  residue  to  be  secured  on  the  property; — 
stating  at  the  same  time  that  he  would  purchase  the  other  third 
on  like  terms,  if  he  could  raise  the  money.  Defendant^  com- 
municated Fross's  offer  to  John  E.  and  Catharine,  and  advised 
them  to  accede  to  it,  as  the  note  was  approaching  maturity,  and 
he  wished  to  take  it  up.  They  objected,  and  said  they  would 
make  other  provision  for  the  payment  of  the  note.  John  E. 
said  he  would  pay  it  out  of  the  proceeds  of  real  estate  he  had 
in  the  county  of  Monroe,  and  which  he  expected  to  sell  to  one 
Lewis  Godard.  Defendant  expressed  his  wish,  at  any  rate,  to 
sell  his  share  to  Fross,  to  which  John  E.  and  Catharine  replied 
by  offering  to  purchase  it,  and  pay  him  what  would  be  his 
share  of  the  profits,  if  sold.  They  offered  to  give  him  a  bond 
and  mortgage  they  held  against  one  Joshua  Boyer.  for  near  the 
amount,  and  their  note  for  the  balance,  which  defendant  agreed 
to  accept;  and,  in  making  up  the  amount  to  be  paid,  defend- 
ant put  the  consideration  paid  for  the  property  at  $2,000,  in- 
stead of  $1,200,  and  they  were  to  pay  the  $4,000  note  at  the 
bank.  Defendant  requested  Charles  II.  Stewart  to  prepare  an 
assignment  of  the  mortgage,  and  the  other  papers,  which,  as 
defendant  was  afterwards  informed  by  Stewart,  were  prepared 

259 


278  CASES  m  ciia:n'cery. 

Scliwarz  v.  Wendell. 

and  presented  by  him  to  Catharine  to  be  executed,  but  that  she 
refused  to  execute  them,     John  E.  afterwards  called  on  defend- 
ant, and  stated  they  had  concluded  not  to  part  with  the  mort- 
gage.    Thereupon,  defendant  proposed  to  relinquish  his  trust, 
and  requested  Catharine  to  appoint  another  trustee,  and  set  oif 
to  him  his  share  of  the  property.     They  acceded  to  the  appoint- 
ment of  a  new  trustee,  and  again  offered  to  purchase  his  inter- 
est on  the  terms  above  stated,  hut  by  a  dilferent  mode  of  pay- 
ment, viz;  their  note  at  tliree  years,  with  interest  at  six 
[-278]  per  cent.,  to  be  also  '^signed  by  the  new  trustee,  which 
defendant  agreed  to.     When  the  $4-,000  note  became 
due,  June  10th,  1836,  Johif  E,  and  Catharine  sought  a  renewal 
of  it,  and  a  new  note  was  given,  endorsed  by  defendant  and 
Hastings,     Denies  the  endorsement  of  Hastings  was  procured 
at  his  request,  or  that  the  renewal  was  on  his  account.     Upon 
the  agreement  for  the  relinquishment  of  the  trust,  John  E,  in- 
formed defendant  that  Catharine  had  appointed  Hastings  her 
trustee.     Charles  H,  Stewart  was    employed   to   prepare  the 
necessa,ry  deeds  and  papers,  but,  before  they  were  prepared,  de- 
fendant exhibited  to  John  E,  a  statement  of  the  amount  due 
him  for  Ids  interest  in  the  Erie  property,  similar  to  the  one 
made  and  exhibited  to  him  and  Catharine  on  the  agreement 
for  a  sale  to  them  for  the  Boyer  mortgage.     This  statement 
was  made  by  charging  $5,000    as    the    value  of  defendant's 
interest — that  being  half  the  amount  offered  by  Eross  for  one- 
third — and  deducting  therefrcmi  half  the  agreed  consideration 
of  the  purchase,  being  $1,000,  and  the  interest  thereon,  and 
half  the  expenses  incident  to  the  purchase,  adding  interest 
from  the  time  John  E.  and  Catharine  finally  agreed  to  purchase 
being  about  the  latter  part  of  August,  making  a  balance  due 
defendant  of  $3,980.24.     He  also  exhibited  to  John    E,  an 
account  of  all  other  matters  between  him  and  John  E.  and 
Catharine,  including  the  balance  of  the  $4,000  paid  to  John  E. 
and  Catharine  at  their  request,  upon  which  there  was  a  balance 
due  him  of  $180.59,  making,  in  all,  the  sum  of  $4,160,83,  the 
sum  mentioned  in  defendant's  j)lea;    and  John  E,  was  fully 
satisfied  and  concurred  therein, 
260 


FIRST  CIRCUIT,  SEPTEMBER,  1843.  279 

Schwarz  v.  Wendell. 

After  the  papers  for  conveying  the  trust  were  prepared, 
January  28th,  1837,  defendant  and  complainants  met  for  the 
execution  of  them,  when  defendant  again  exhibited  his  state- 
ments and  accounts,  and  all  matters  growing  out  of  the 
trust  and  purchase  were  then  fully  adjusted  and  *set-  [*279] 
tied,  and  Catharine  and  Hastings  signed  the  note  to 
ilefendant  for  $3,980.24.  Catharine  made  no  objection  to  sign- 
ing the  note.  John  E.  also  executed  a  note  to  defendant  for 
the  $180.59,  to  be  paid  out  of  moneys  which  defendant  expected 
to  receive  for  him.  Defendant  denies  he  required  Catharine 
to  sign  the  note,  as  a  condition  of  transferring  the  trust  ;  or, 
that  she  was  taken  by  surprise  ;  or,  that  she  did  not  act  volun- 
tarily in  signing  it  ;  or,  that  any  part  of  the  statement  or 
account  exhibited  by  him,  was  unintelligible  ;  or,  that  she 
stated  it  was  not  just  or  right  to  require  her  to  account  for 
such  profits  until  a  sale,  &c.  After  the  papers  had  been  exe- 
cuted, but  not  before,  Catharine  remarked  she  thought  Mr. 
Wendell  might  have  waited  for  his  share  until  the  proj^ert}^ 
had  been  sold  ;  which  was  the  only  remark  made  by  her 
during  the  whole  interview,  or  at  any  other  time,  to  the  knowl- 
edge of  defendant,  indicating  any  other  than  full  and  entire 
satisfaction.  ]S^either  Catharine  nor  John  E.  ever  expressed 
any  dissatisfaction  with  the  settlement,  to  defendant,  before 
filing  the  bill.  Defendant  had  been  trustee  for  nearly  eight 
years.  He  had  not  charged  or  received  any  compensation,  and, 
on  surrendering  the  trust,  was  induced  not  to  make  any,  in 
consequence  of  the  profits  on  his  interest  in  the  purchase. 

The  note  at  the  bank  was  not  paid  with  money  held  in  trust 
for  Catharine.  A  part  of  it,  $3,841.29,  was  paid  with  money 
received,  of  Godard  for  the  Monroe  land,  and  the  balance, 
$158.71,  was  furnished  by  John  E.  out  of  his  own  funds.  De- 
fendant had  sold  the  $3,980.24  note  to  Schoolcraft.  Does  not 
know  the  present  value  of  the  Erie  property  ;  it  would  prob- 
ably be  valued  at  much  less  than  when  he  sold  it. 

John    E.    was    much    embarrassed     in    his    circumstances 
when  defendant  was  a])pointed  trustee,   but  the  trust 
*money  was  not  used  to  pay  liis  debts,  with  an  understand-['''-280] 

261 


281  CASES  IN  CHANCERY. 

Schwarz  v.  Wendell. 

ino-  it  would  be  replaced  by  him.  He  was  under  tbe  neces- 
sity of  selling  some  real  estate  to  pay  his  debts,  which  was 
purchased  by  defendant,  and  paid  for  out  of  the  trust  money,  and 
a  deed  was  taken  by  defendant,  as  trustee.  Denies  the  land  in 
Monroe,  sold  to  Godard,  was  conveyed  to  him  on  the  10th  day 
(.f  March,  1836,  as  trustee  for  Catharine,  with  a  view  of  replacing 
trust  moneys  that  had  been  used  to  pay  John  E.'s  debts. 
Defendant  was  absent  from  Detroit  when  the  deed  was  made 
to  him  by  John  E.,  and  did  not  know  of  tlie  existence  of  such 
conveyance  until  his  return,  in  April,  from  Philadelphia,  when 
John  E.  and  Catharine  applied  to  him  for  the  balance  of  the 
money  left  after  the  purchase  of  the  Erie  property  ;  and  John 
E.  assured  him  he  would  provide  the  means  for  paying  the 
note  at  the  bank  out  of  the  avails  of  the  Monroe  property, 
which  he  expected  to  sell  to  Godard,  when  defendant  received 
the  deed  from  him,  and  held  the  land  as  a  fund  for  the  pay- 
ment of  the  note.  Defendant  conveyed  the  land  to  Godard, 
but  knows  nothing  as  to  the  form  of  the  mortgage  taken  from 
Godard  by  John  E.  He  does  not  recollect  having  ever  seen 
it.  With  the  $3,841.29  received  of  Godard,  and  8158.71  ad- 
vanced by  John  E.  out  of  his  own  private  funds,  the  $1:,00(> 
note  was  paid  ;  and  entries  were  made  of  these  transactions  in 
the  trust  books,  that  there  might  be  some  record  of  them.  The 
payment  of  the  note,  and  the  receipt  of  the  moneys  with  which 
it  was  paid,  were  placed  opposite  each  other,  and  were  never 
regarded  as  the  moneys  of  Catharine. 

Charles  H.  Stewart,  the  only  witness  in  the  case,  proved  the 
execution  of  the  deed  transferring  the  trust  from  defendant  to 
Hastings.     Tw^o  or  three  weeks  previous  to  that  time,  there 

was  a  settlement  between  John  E.,  Catharine,  and  de- 
[*281]  fendant,  which  was  admitted  by  the  parties  '^to  be  a  full 

and  final  adjustment  of  all  matters  growing  out  of  the 
trust,  and  witness  was  directed  to  prepare  an  assignment  of  a 
mortgage  on  certain  property  in  the  city  of  Detroit,  to  secure 
to  defendant  the  balance  so  admitted  to  be  due.  Witness  did 
so,  and  it  was  either  executed,  or  agreed  to  be  executed  by  John 
E.,  and,  by  his  desire,  was  presented  to  Catharine  for  execu- 

262 


FIRST  CIRCUIT,  SEPTEMBER,  1S43.  282 

Schwarz  v.  Wendell. 

tioii,  in  the  presence  of  John  E.,  but  she  dcclhied  executing  it, 
!^aying  they  wanted  that  particular  property  for  other  purposes. 
The  means  witness  had  of  knowing  that  the  settlement  was  a 
full  and  final  settlement,  Avere  the  statements  and  admisions  to 
that  effect,  by  the  parties.  The  particulars  of  the  settlement 
did  not  transpire  in  the  presence  of  witness.  No  change  of 
the  trust  was  then  contemplated,  but  a  mere  security,  by  de- 
fendant, of  au  admitted  balance.  On  the  refusal  of  Catharine 
to  execute  the  assignment,  the  defendant  required  to  be 
relieved  from  his  trust,  and  then  it  was  that  Hastings 
was  selected.  Before  the  transfer  of  the  trust,  or  at  that  time, 
a  note  was  executed  by  Hastings,  as  trustee,  to  defendant,  for 
the  balance  admitted  to  be  his  due,  according  to  the  previous 
arrangement.  Defendant  wished  to  be  relieved  from  his  trust, 
and  to  get  security  against  his  responsibility  as  trustee,  and 
evidence  of  the  balance  due  him,  at  one  and  the  same  time. 
Witness  recollects  that  John  E.,  and,  he  believes,  Catharine,  at 
the  time  of  the  proposed  assignment  of  the  mortgage,  said  the 
defendant's  account  was  too  high.  They  did  not  say  this  as 
protesting  against  it,  or  as  refusing  to  pay  it.  "Wendell  re- 
quired to  be  secured  in  the  amount  due  to  him,  and  also  to  be 
released  from  his  trust.  Both  requisitions  were  acceded  to, 
and  no  objection  was  made,  at  any  time,  to  secure  the  balance. 
AVhen  the  papers  were  prepared,  they  were  executed  without 
([uestion. 

^'Jofj  (&  Porter,  for  complainants.  [*282] 

I.  It  is  clear,  from  the  whole  case,  that  Wendell,  in  his 
journey  to  Philadelphia,  and  the  purchase  of  the  Erie  prop- 
erty, was  acting  in  the  capacity  of  agent  and  trustee  of  Mrs. 
Schwarz,  and  not  on  his  own  behalf.  The  money  was  all  fur- 
nished by  her,  and  he  was  acting  throughout  for  a  compensa- 
tion, which  he  was  to  realize  out  of  the  expected  profits.  The 
colorings  and  allegations  set  up  in  the  answer,  to  prove  it  to 
have  been  a  joint  speculation,  (such  as  the  statement  that  he 
obtained  the  money  on  his  own  credit  and  i-esponsibility,  the 

203 


283  CASES  IN  CHANCERY. 

Scliwarz  v.  Wendell. 

offer  by  Mrs.  Scliwarz  to  buy  his  share,  &c.)  and  the  various 
matters  by  which  he  seeks  to  divest  himself  of  the  character 
and  responsibility  of  an  agent,  are  not  responsive  to  the  bill, 
and  not  proved,  and  therefore  must  be  taken  to  be,  as  they 
really  are,  false.  2  J.  C.  JR.  88;  13  Yes.  R.  47;  7  Yes.  E.  587; 
2  Ball  &  Beat.  R  382;  1  Wash.  C.  C.  K  224;  1  Mumf.  E. 
373;  2  Caines  Ca.  66;  IJ.  E.  580. 

He  had  no  right  to  take  a  deed,  except  as  trustee  for  her; 
and,  had  he  done  otherwise,  or  taken  a  deed  to  himself,  indi- 
vidually, of  any  part  of  the  property,  it  would  have  been  a 
fraud,  and  this  Court  would  have  compelled  him  to  transfer  it 
to  Mi's.  Scliwarz.  His  statement  about  the  agreement  to  take 
a  deed  thus,  to  save  a  multiplicity  of  convegances,  is  respons- 
ive to  nothing  in  the  bill,  and  is  also  inconsistent  with  the 
tenor  of  the  executed  agreement,  which  was  that  he  should  be 
compensated,  by  receiving  half  the  profits  of  the  Erie  p)rop- 
erty,  when  sold,  and  not  half  the  title.  He  could  not  take 
title  to  himself  personally.  10  Yes.  E.  394;  Story  on  Agency, 
194. 

Ev^en  if  "Wendell  had  furnished  the  money  himself,  as  he 
agreed  to  do,  lie  could  have  had  no  right  to  purchase  the 
property  for  any  one  except  Mrs.  Scliwarz.  Had  his 
[*283]  ^conduct  been  fair,  he  could  have  enforced  his  agree- 
ment, in  equity,  by  a  bill  to  obtain  a  sale  of  property? 
and  a  division  of  the  profits.  But  he  did  not  furnish  the 
money,  or  any  part  of  it.  The  note  was  finally  paid,  not  by 
him,  but  by  Mrs.  Scliwarz.  In  contemplation  of  law,  the 
money  obtained  from  the  bank  was  hers  throughout.  It  was 
obtained  for  her,  expended  for  her,  and  finally  repaid  by  her. 

II.  The  sale  by  Wendell  can  only  be  viewed  as  a  specula- 
tion by  a  trustee  out  of  a  cestui  que  trust,  by  a  sale  of  an  an- 
ticipated interest  in  the  profits  of  a  purchase  made  by  him,  on 
joint  account,  even  upon  his  owm  allegation,  but  in  reality  with 
her  money. 

The  allegations  in  the  answer,  tending   to  show  that   the 
agreement  and  sale,  after  the  offer  made  by  Fross,  were  with 
and  to  Mrs.  Scliwarz  and  her  husband,  jointly,  are  not  respon- 
264 


FIRST  CIECUIT,  SEPTEMBER,  1843.  284 


Scliwarz  v.  Wendell. 


sive  to  the  bill.  They  are,  moreover,  inconsistent  with  the 
facts  appearing.  The  note  executed  for  the  alleged  purchase, 
was  signed  by  no  one  but  Mrs.  Schwarz,  and  her  trustee,  Mr. 
Hastings.  The  Boyer  mortgage,  which  was  to  have  formed  a 
part  of  the  consideration,  was  her  property  alone.  The  plea 
alleges  that  the  note  was  for  the  amount  found  due  from  Mrs. 
Schwarz  to  Wendell,  and  the  answer  admits  that  the  balance 
was  made  up  of  the  Erie  purchase  ]jrofits,  which  were  conveyed 
to  her  by  Wendell. 

The  trustee  says  he  bought  for  the  joint  benefit  of  his  cestui 
que  trust,  and  himself,  but  without  advancing  any  money. 
Upon  the  best  state  of  the  case  which  can  be  made  out  for  the 
defendant,  it  appears  that  he  managed  to  procure  his  cestui  que 
trust  to  assume  the  whole  responsibility,  repay  the  money 
Ijorrowed,  assume  all  the  risk  of  any  possible  loss  in  the 
speculation,  and  then  pay  him  ^$4,000  for  his  chances  p284] 
for  profits.  This  is  truely  a  handsome  operation  to  be 
made  out  of  a  cestui  que  trust. 

Upon  this  state  of  facts,  will  not  this  Court,  upon  the  prayer 
of  the  injured  cestui  que  trust,  lay  its  hands  upon  this  trans- 
action, and  compel  the  trustee  to  refund  the  money  which  he 
has  wrongfully  obtained,  and  pay,  or  take  up,  and  indemnify 
liis  cestui  que  trust  against  the  note  thus  wrongfully  obtained, 
and  lor  which  he  has  received  value? 

A\^e  take  the  law  to  be  perfectly  clear  that  no  transaction  of 
this  kind, — no  trade, — no  business  tranactiou  of  this  nature, — 
between  a  trustee  and  cestui  que  trust,  can  stand,  if  the  cestui 
que  trust  chooses  to  set  it  aside.  The  principle,  as  we  under- 
stand it,  is  one  of  universal  application,  founded  on  policy,  and 
has  710  regard  to  the  fairness  of  the  transaction,  character  of 
the  imrtics,  or  anything  of  that  nature.  It  is  based  upon 
this,  that,  where  parties  are  so  situated  with  regard  to  each 
other,  one  being  a  trustee  holding  the  property  of  the  other, 
and  the  other  being  a  cestui  que  trust,  the  trustee  uiay,  from 
his  2^osition,  acquire  an  influence  over  his  cestui  que  trust, 
which  gives  him  an  advantage  in  all  inatters  of  business,  and 
places  the  other  comjparatively  in  his  power.     That,  from  the 

265 


285  CASES  IN  CHANCERY. 

Schwarz  v.  Wendell. 

difficulty  of  examining  cases  of  this  nature,  from  the  infirmity 
of  human  testimony, — the  difficulty  of  sifting  the  motives  of 
parties — courts  of  equity  have  established  a  general  rule,  that 
no  transaction  between  parties  so  situated  shall  stand,  if  the 
cestui  que  trust  wishes  to  set  it  aside.  Courts  say  that  this  is 
the  only  principle  which  will  save  the  weaker  party  from  be- 
coming the  victim  of  overreaching,  or  artful,  or  designing  men. 
It  is  a  principle  founded  on  reason,  and  sound  sense,  and  good 
policy.  1  Story  Com.  on  Eq.  307,  310,  316,  et  seq.;  10  Yes.  E. 
394;  6  Yes.  E.  268;  9  Yes.  E.  2M,  295;  2  Sch.  &  Lefr. 
p285]500,  665;  1  Cox  Ca.  119;  Talb.  Ca.  *111;  2  Bro.  E. 
427;  10  Eng.  Cond.  Ch.  E.  190;  8  Eng.  Cond.  Ch.  E. 
312. 

A  variety  of  cases  have  been  decided,  and  relief  affiarded  in 
equity,  where,  from  the  nature  of  the  transaction,  and  the  sit- 
uation of  the  parties,  fraud  or  imj^osition  might  be  presumed. 
See,  for  instance,  8  Cow.  E.  370;  3  P.  Wms.  E.  139. 

The  above  cases,  with  many  others,  establish  the  doctrine 
beyond  a  question,  that,  in  cases  where  the  parties  stand  in  the 
confidential  relations  of  attorney  and  client,  guardian  and  ward, 
trustee  and  cestui  que  trusty  they  shall  not  bargain  with  each 
other,  and,  if  they  do,  the  cestui  que  trust,  the  ward,  or  the 
client,  shall,  if  they  please,  set  aside  the  sale,  and  be  restored 
to  the  rights  which  they  formerly  possessed. 

Courts  of  equity  adopt  the  broad  and  sound  principle,  that, 
where  these  relations  exist  between  the  parties,  they  cannot  deal 
with  each  other  on  equal  terms.  The  confidence  which  is 
reposed,  the  means  of  influence  which  one  party  holds,  gives 
him  so  much  the  advantage,  that  it  is  dangerous,  and  may  be 
ruinous  to  the  other,  to  sufier  them  to  contract.  And  it  is  so 
difficult  to  weigh  this  influence,  to  investigate  these  cases,  and 
ascertain  whether  any  advantage  has  been  taken,  that  courts 
have  adopted  a  rule,  which  puts  the  sting  of  disability  into  the 
contract.  The  parties  should  not  deal  with  each  other.  It 
matters  not  how  fair  the  transaction,  it  cannot  stand.  The 
Court  will  not  inquire  into  this  point.  This  is  fully  established 
by  the  above  cases.  Although  in  the  various  cases,  various 
266 


FIEST  CIRCUIT,  SEPTEMBER,  1843.  280 

*  Schwarz  v.  Wendell. 

reasons  are  assigned  for  the  principle,  yet,  in  all  the  principle 
is  established.  And,  in  several,  it  is  broadly  laid  down  that, 
where  these  confidential  relations  exist,  the  parties  cannot  deal 
on  equal  terms,  and  therefore  they  shall  not  deal  at  all 

*III.  But  in  this  case,  were  there  no  such  rela-  [*2SG] 
tions  existing,  the  transaction  is  such  that  this  Court 
ought  not  to  permit  it  to  stand.  It  is  such  an  one  as  shocks 
the  conscience.  The  advantage  taken  is  so  great,  that  it  is,  upon 
its  tace,  an  outrage  upon  honor  and  common  honesty.  To  pro- 
cure money  upon  my  note  to  buy  land  for  me,  and  to  receive 
as  a  compensation  half  the  profits  when  sold,  and  then  pay 
the  note  out  of  my  money,  and  compel  me  to  pay  $4,000  for 
half  the  profits,  in  advance,  is  upon  the  face  of  it,  an  outrageous 
transaction;  and  we  are  fully  persuaded  that,  if  there  were  no 
other  feature  in  it,  this  Court  would  say  that  the  advantage 
taken,  is  so  monstrous,  that  it  cannot  be  sustained.  It  falls 
directly  within  the  class  of  cases  where  the  Court  will  set  aside 
the  trade  for  inadequacy  of  consideration.  2  Bro.  R.  179;  7 
Yes.  R.  30;  8  Yes.  R.  133;  9  Yes.  R.  234;  10  Yes.  R.  470,  292, 
209;  14  Yes.  R.  28;  13  Yes.  R.  95;  3  Yes.  &  B.  187;  2  Sch. 
&  Lefr.  395;  Sugd.  on  Yend.  226. 

lY.  It  may  be  ai'gued  that  here  too  much  time  has  been 
permitted  to  elapse,  and  that  we  come  in  too  late.  But  this  is 
not  so.  We  have,  in  a  case  of  this  nature,  the  right  to  file  our 
bill  at  any  time  when  the  note  is  sought  to  be  enforced  against 
us. 

How  could  we  know  that  "Wendell  had  sold  it?  And  if  he 
had  not  sold  it,  could  he  eufurce  it  against  us;  and  might  we 
not  file  our  bill  whenever  he  should  seek  to  enforce  it?  Besides, 
he  has  got  a  security  from  us,  which  it  is  unconscientious  that 
he  should  retain. 

Mrs.  Schwarz  was  not,  until  recently,  before  filing  her  bill, 
acquainted  with  her  legal  rights.  It  is  suflicient  tliat,  when- 
ever she  does  become  acquainted  M'itli  her  rights,  she  seeks  to 
redress  them.  Simple  lapse  of  time  will  not  bar  her  riglits  in 
a  case  of  this  nature,  unless  with  a  fnll  knowledge  of  her 
rio'htSj  she  confirms  the  trade.     12  A^es.  ^^'R.  374;  5  Pet.  [*2S7] 

267 


288  CASES  IN  CHANCERY 

Scliwarz  v.  Wendell. 

Cond.  R.    150;    Cooper   Eq.    146;    5   Yes.  E.  678;    11  Yes. 
R.  226;  9  Yes.  R  292;  2  Yes.  R.  272,  &  note;  14  Yes.  R.  91; 

2  Atk.  R.  119. 

Y.  The  only  question,  tlien,  is,  wliether  the  j)lea  and  answer 
contain  a  bar  to  this  inquiry,  or  whether  this  transaction  may 
not  yet,  notwithstanding  the  matters  in  the  plea  and  answer 
alleged,  be  made  right  in  this  Court. 

The  plea  is  not  sufficient,  and,  if  sufficient,  constitutes  no 
defense  to  this  suit. 

It  is  not  sufficient,  because  it  does  not  aver  that  the  account, 
which  was  stated,  is  a  true  and  just  account.  This  is  necessary, 
though  the  bill  do  not  impeach  the  account  for  fraud  or  error. 

3  J.  C.  R.  388;  1  Beames  PL  230;  3  Atk.  R.  70;  Cooper  PL 
279;  Mitford  PL  260;  4  Paige  R.  195. 

Another  reason  is,  that  the  plea  does  not  put  in  issue  the 
matter  charged  in  the  bill,  nor  deny  the  constructive  fraud 
alleged,  nor  the  imposition.  The  plea  should  deny  the  facts 
which  constitute  our  ground  for  redress  and  relief.  4  Paige  R. 
196;  3  Paige  R.  277;  2  Atk.  R.  119. 

As  to  the  covenant  of  indemnity,  w^e  saj',  lirst,  that  it  has  no 
application  at  all  to  this  case,  from  its  very  terms,  and  if  it  can 
only  operate  as  a  release,  and  is  subject  to  the  same  objections 
on  the  account  stated,  or  the  note, —  that  it  was  unfairly  ob- 
tained,—  it  would  be  pleading  one  part  of  an  unjust  settlement 
to  cover  up  and  prevent  the  investigation  of  all  the  antecedent 
frauds.  Story  Eq.  PL  613,  &c.;  Mitf.  PL  261;  2  Sch.  &  Lefr. 
721;  6  Madd.  R.  62;  2  Sim.  &  Stu.  279;  3  Paige  R.  277. 

Neither  the  plea  nor  the  answer  denies  what  we  set  up  as  an 
equitable  ground  of  relief.    They  simply  assert  that  the  account 
which  was  rendered  was  just  and  true,  and  was  acquiesced  in, 
&c.     Now,  as  we  have  shown,  this  is  not  enough,  unless 
[*288]  he  denies  the  circumstance  which  we  ^allege,  to  wit,  the 
transaction  relative  to  the  Erie  property,  by  which  Wen- 
dell makes  at  least  $4,000  out  of  his  cestui  que  trust,  which 
was  allowed  in  the  settlement,  and  makes  the  settlement  unjust. 
And  we  may  read  the  answer,  admitting  this  fact,  to  show  that 
the  account  rendered,  which  included  this  charge  of  $4,000  for 
268 


FIEST  CIRCUIT,  SEPTEMBEE,  1843.  289 

Schwarz  v.  Wendell. 

profits  in  that  transaction,  was  not  a  just  account,  notwitlistand- 
ing  Wendell's  assertion  that  it  was  just  and  true.  This  Court 
is  to  say  whether  it  was  just,  upon  the  facts  before  it.  Mitf. 
PI.  299;  4  Paige  R.  178;  2  Paige  R.  574. 

Goodwin  da  Collins,  for  defendant. 

1.  The  answer,  (except  as  to  the  covenant  set  forth  in  the 
plea,  which  is  proved  by  the  testimony  of  Stewart,)  is  respou- 
sive  to  the  bill,  and  is  evidence.  It  is  evidence  as  to  all  con- 
tained in  it  responsive  to  the  bill,  whether  it  be  the  stating, 
charging,  or  interrogating  part  of  it.  All  the  allegations  so 
responsive  are  to  be  taken  as  true,  unless  contradicted  by  two 
witnesses,  or  one  witness  and  pregnant  circumstances.  3  Barb. 
&  Harr.  Eq.  Dig.  383;  2  Pet.  Cond.  R.  285;  3  id.  417,  424;  1 
Wend.  R.  583;  3  Paige  R.  557;  1  Cow,  R.  711;  4  Paige  R. 
368. 

This  rule  has  been  established  in  practice  as  long  as  there 
has  been  a  Court  of  Chancery  in  Michigan,  and  is  not  now  an 
open  question.  The  rule  contended  for  by  the  complainants, 
as  laid  down  in  the  cases  cited  by  Counsel,  does  not  exclude  the 
answer,  or  any  part  of  it.  It  is  that  where  ^^neto  and  distinct 
matters  are  set  up  in  avoidance,''^  and  there  is  a  rej^licatiou, 
those  matters  must  be  proved.  J^one  of  the  matters  set  forth 
in  the  answer  are  new  and  distinct  matters.  They  are  part  and 
parcel  of  the  transactions  upon  which  the  complainants  seek 
relief,  and  of  which  they  have  called  for  a  discovery.  The  case 
in  3  Mass.  R.  278,  is  to  this  effect,  and  no  more.  See 
also  -"2  McCord  Ch.  R.  90,  101,  102,  344,  350;  Reclcs  v.  [^289] 
Postlethwaite,  Coop.  Ch.  Ca.  161;  14  J.  R.  63,  73;, 8 
Cow.  R.  394;  Green,  y.  Vandman,  2  Blackf  R.  324. 

Even  the  strict  rule  of  the  Southern  cases  cited,  does  not 
support  the  complainant's  case.  The  rule,  in  these,  as  stated, 
is  ''that  the  answer  is  not  evidence  when  it  asserts  a  right 
affirmatively,  in  opposition  to  the  plaintiff's  demand.''  But 
they  agree  that  eve7'y thing  stated  in  the  aiuwer,  resjjonsive  as 
to  the  c7'eation  of  the  original  liahility  charged,  must  he  taTcen 

269' 


290  CASES  m  CHANCERY. 

Scliwarz  v.  Wendell. 

together.  But  where  the  orig;inal  liability  is  once  admitted  by 
the  answer,  there  is  no  escape  from  it  but  by  proof."  2  Cow.  ct 
H.  notes  to  Phil.  Ev.  268. 

U23on  this  rule,  all  of  the  answer  is  evidence  in  the  case. 
The  bill  seeks  relief  from  a  note,  upon  a  variety  of  facts  alleged 
to  show  a  want  of  consideration,  imposition  and  fraud.  The 
answer  denies  that  any  such  gounds  of  relief  do,  or  ever  did 
exist,  and  gives  a  full  history  of  the  transactions  referred  to, 
showing  there  were  none.  The  "  liability  charged,"  is  repelled 
from  beginning  to  end. 

II.  This  is  not  a  case  of  a  purchase  of  trust  property  by  a 
trustee,  nor  do  the  cases  on  this  subject  apply  to  it. 

It  is  contended  that  the  trustee,  while  the  relation  exists, 
cannot  buy  of  the  cestui  que  trust  the  trust  property.  This 
is  not  such  a  case,  and  if  it  were,  the  position  is  not  true.  The 
cestui  que  trust  is,  in  equity,  the  owner  of  the  trust  property, 
and  may  alien,  demise,  and  dispose  of  it,  and  even  when  a  feme 
covert,  encumber  it  for  her  husband's  debts,  and  may  sell  and 
dispose  of  it  to  the  trustee,  by  a  fair  bargain,  clear  of  fraud 
and  imposition.  1  Madd.  Ch.  113,  453,  456;  2  Kent.  Com. 
162;  1  J.  K  548;  6  Yes.  E.  625;  9  Yes.  R.  246;  12  Yes.  E. 
373;  3  Meriv.E.  208;  Newl.  on  Cont.  453;  1  Cruise  Dig.  500. 

III.  It  is  insisted,  on  the  part  of  the  complainants,  that  the 
purchase   made   by   defendant,   of  the  Erie    property, 

[*290]  *was  with  trust  funds  of  Mrs.  Schwarz;  and  that  the 
trustee  cannot  use  the  trust  funds  to  make  profit  for 
himself.  If  the  facts  were  so,  yet,  if  it  were  done  with  the 
ao-reement  of  the  cestui  que  trust,  and  a  consideration  is  ren- 
dered for  it,  labor  and  service  being  performed  therefor,  it  is  not 
perceived  why  such  an  agreement,  fairly  made,  cannot  be  sus- 
tained; and,  more  especially,  why  a  subsequent  settlement  of 
such  an  agreement  performed,  should  not  be  sustained. 

But  it  is  not  true  that  trust  funds  of  Mrs.  S.  were  used  for 
the  purchase  of  the  Erie  property;  it  was  not  understood  or 
agreed  that  they  should  be  so  used,  nor  were  they  so  used. 
The  agreement  between  Schwarz  and  Wendell  was,  that  the 
purchase  of  the  Erie  property  should  be  made  by  Wendell,  with 

270 


FIRST  CIRCUIT,  SEPTEMBER,  1843.  291 

Schwarz  r.  ^\'t'Il(llill. 


funds  to  be  raised  by  him  at  the  Bank  of  Michigan,  npoii  a 
note,  to  wliich  Mrs.  S.  was  to  be  a  party,  to  save  the  procuring 
another  endorser;  that  Wendell  should  own  one-half  the  prop- 
erty, and  have  half  the  profits;  that,  on  Wendell's  return,  the 
sale  to  Wight  should  be  made,  and,  out  of  the  proceeds,  the 
money  was  to  be  repaid.  Wendell  so  raised  the  money,  and 
made  the  purchase;  and  let  Mr.  and  Mrs.  Schwarz  have  the 
balance  of  the  money  on  hand,  (AV"ight  not  having  purchased, ) 
on  Schwarz's  assurance  that,  if  necessary,  he  would  pay  the 
note  out  of  a  sale  of  land  to  Godard.  A  deed  of  this  land  was 
made  to  defendant  during  his  absence,  and,  on  this  agreement, 
it  was  tendered  to  him  hy  Mrs.  S.  and  recewed  under  that 
agreement.  Wight  not  appearing,  and  the  note  approaching 
maturity,  Fross  proposes  to  purchase,  and  Wendell  urges  a  sale, 
and  payment  of  the  note.  On  Mr.  and  Mrs.  S.'s  objecting. 
AVendell  proposed  to  sell  his  share  to  Fross,  and  Mr.  and  Mr.<. 
S.  then  propose  to  buy  it,  and  pay  him  by  the  Boyer  mortgage, 
&c.,  Mr.  S.  proposing  as  before,  to  pay  the  note  out  of 
the  proceeds  of  *his  sale  to  Godard.  Mrs.  S.  then  con-  [*291] 
eluded  to  retain  the  Boyer  mortgage,  and  other  security 
was  proposed  and  finally  given.  Schwarz  obtained  a  renewal 
of  the  bank  note,  and  it  was  subsequently  paid  out  of  the  pro- 
ceeds of  the  land,  as  agreed.  The  purchase  money  of  the  Erie 
property,  then,  was  raised  on  a  note  which  was  finally  paid  out 
of  property  and  funds  of  John  E.  Schwarz.,  and  not  trust 
funds  of  Mrs.  S.,  and  had  no  connection  with  them. 

The  deed  of  the  Monroe  land  to  Wendell  took  effect  only  on 
its  delivery.  9  Cow.  R.  255,  On  its  face,  its  legal  operation 
was  to  convey  the  property  absolutely  to  W.  Under  the  agree- 
ment under  which  it  was  delivered  and  received,  it  was  held  fi>r 
the  purposes  provided  for  therein'.  If,  in  the  absence  of  the 
agreement,  any  trust  arose,  other  than  that  on  the  face  of  the 
deed,  it  was  a  resulting  trust  for  John  E,  And  a  resultinu- 
trust  arising  by  parol,  is  destroyed  by  parol;  as  in  this  case,  bv 
the  agreement  between  Wendell  and  J.  E.  Schwarz,  Besides, 
the  agreement  has  been  ful  I  v  executed,  and  there  is  nothiuir  left 

271 


292  CASES  IN  CIIATsCERY 


Schwarz  v.  Wendell. 


unexecuted  to  be  settled  in  regard  to  it.     1  Cruise  Dig.  -iOS, 
422;  4  Kent  Com.  300;  2  J.  C.  K.  405. 

lY.  There  was  a  full  settlement  between  the  complainants 
and  the  defendant,  of  all  matters  and  transactions  between  J. 
E.  and  Catharine  Schwarz,  and  the  defendant,  and  particularly 
"•rowing  out  of,  or  connected  with  the  trust,  at  the  time  of  its 
surrender;  and  at  the  same  time  the  covenant  was  executed  set 
forth  in  the  plea.  By  the  plea  and  answer,  it  will  be  seen,  that 
there  was  then  a  full,  fair  and  final  account,  preceding  said  set- 
tlement, and  consummated  therein,  as  to  all  said  matters. 
These  constitute  a  full  bar;  and  the  covenant  has,  it  is  con- 
tended, the  full  force  of  a  release.  1  Madd.  Ch.  100;  Mitf. 
Eq.  PL  259;  2  Cond.  Ch.  K.  116,  449;  1  Swift  Dig.  302. 
p292]  *1  T.  R.'  446;  8  T.  E.  483;  4  Paige  R.  368,  481;  3  J. 
C.  R.  569;  1  Young  R.  306;  1  Hopk.  R.  239;  1  Barb. 
&  Harr.  Eq.  Dig.  55. 

It  is  shown  clearly  by  the  facts  in  the  case,  that  the  balance 
claimed  at  the  time  of  the  settlement,  was  fully  understood  and 
acknowledged.  Not  only  therefore  is  all  imputation  of  fraud 
removed,  but  it  would  be  difficult  to  present  a  case  of  a  more 
full,  fair  and  complete  adjustment,  and  final  settlement,  of  any 
matter  whatever. 

Besides,  the  settlement  and  bond  of  indemnity,  were  executed 
and  accomplished  with  the  concurrence  of  Mr.  Hastings,  the 
new  trustee,  as  well  as  Schwarz,  the  husband. 

Y.  Kot  only  was  there  this  settlement,  but  the  complainants 
lay  by  several  years  thereafter,  before  bringing  their  bill,  or 
making  any  complaint.  Upon  the  grounds  upon  which  they 
complain,  this  is  an  important  fact,  and  should  itself  be  a 
ground  for  refusing  any  relief.  The  times  have  changed.  The 
property  has,  it  appears,  depreciated,  when  it  might  have  been 
sold  at  the  time,  for  the  proposed  price;  and  the  note  has  been 
transferred,  and  the  avails  of  it  most  likely  exhausted.  Such 
is  the  doctrine  recognized  by  this  Court,  in  Jones  v.  Dishrow, 
Harr.  Ch.  R.  102.  See  also,  1  Madd.  Ch.  99,  417;  2  Cow.  & 
II.  notes  to  Ph.  Ev.  339;  3  liar.  &  J.  43;  1  Edw.  R.  417;  2 
272 


FIEST  CIRCUIT,  SEPTEMBER,  1813.  293 

Schwarz  v.  Wendell. 

Raige  R.  556;  Newl.  on  Cont.  4GG;  10  Ves.  R.  423;  2  Cond. 
R.  449. 

Wendell  was  by  agreement  to  be  paid  for  his  services.  In 
his  answer,  he  states  tliem  to  be  worth  $500  a  year,  for  the 
eight  years,  and,  in  consequence  of  his  interest  in  the  Erie 
purchase,  he  charged  nothing  therefor  in  the  settlement.  A 
trustee  is  entitled  to  compensation  where  there  is  an  agreement 
to  that  effect,  though  not  in  the  trust  deed.  And  here  the 
agreement  is  sworn  to  in  the  answer,  in  response  to  the  bill. 
Atk.  R.  59;  1  J.  C.  2T. 

*VI.  It  was  understood  when  the  Erie  property  was  [*293] 
purchased,  that  it  should  be  directly  sold,  and  the  con- 
sideration repaid,  and  the  profits  realized.    This  contract,  which 
was  perfectly  fair,  the  parties  were  bound  to  fulfill,  and  a  court 
of  equity  would  compel  the  refusing  party  to  do  so,  and  that 
without  injurious  delay.     1  Madd.  Ch.  418;  3  Sch.  &  Lefr  R. 
G04.     The  parties  here,  instead  of  carrying  it  into  eifect  as 
originally  agreed,  do  so  in  another  manner; — that  is,  S.  and  his 
wife  refuse  to  do  so  as  originally  proposed,    but  themselves 
become  purchasers  of  Wendell's  interest.      This  is   just  and 
equitable,  according  to  the  established  principles  of  this  Court. 
YII.  This  is  not  a  case  in  which  the  Court  will  or  can  furnish 
any  relief.     The  note  has  been  sold,  the  holder  of  the  note  is 
not  a  party  to  this  suit,  and  not  only  so,  but,  when  Wendell 
purchased  the  Erie  property,  he  paid  the  consideration,  to  wit, 
the  funds  raised  at  bank.     Schwarz  repaid  this,  by  payment  of 
the  note  at  bank  under  the  agreement  for  the  sale  by  Wendell 
to  him  and  Mrs.  S.  of  his  interest.     Will  the  Court  now  annul 
the  sale,  and  compel  Wendell  to  take  back  his  half  of  the  Erie 
purchase,  and  repay  the  consideration  and  interest,  and  pay  and 
take  up  this  note,  and  besides,  (if  the  Court  adopt  the  equitable 
rule  they  must,)  put  the  parties  in  sfutu  quo?     To  do  all  this, 
in  this  case,  at  this  time,  under  the  circumstances,  would  be 
iniquitous  and  tyrannical  in  the  extreme. 

The  bargain  with  Mr.  and  Mrs.  S.  prevented  Wendell  from 
selling  to  Fross.     The  Qowrt  cannot^  noia,2:)ut  f/ie  jx/rtics  back 
where  they  loere,  but  to  cancel   the  agreement  would  make 
Vol.  L— 18  273 


204  CASES  IX  CIIAXCERY. 

Schwarz  v.  Wendell. 

Wendell  pay  all  the  money  above  mentioned,  and  leave  him, 
with  his  former  share  of  the  Erie  property  on  his  hands,  with 

the  price  depressed,  and  the  sale  prevented  by  the  acts 
[*294:]  of  the  complainants,  which  they  seek  to  avoid;  *and 

moreover,  for  eight  years'  services,  worth  $500  per  year, 
deprive  him  of  all  remuneration  and  indemnity.  Eurther, 
Hastings  and  Mr.  S.  were  parties  to  the  agreement,  and 
Hastings  is  to  the  note,  and  the  legal  effect  of  the  note  is 
that  Hastings  is  personally  liable.  Will  the  Court  relieve  him 
under  these  circumstances,  and  especially  when  Mrs.  S.,  being 
a,  feme  covert,  is  not  liable  at  law  on  the  note?  And  Schwarz 
himself,  who  is  a  party  and  prime  mover  in  all  the  transac- 
tions, should  (if  any  other  than  the  parties  to  the  note)  be 
compelled  to  pay.  Let  the  Godard  mortgage,  and  the  other 
portion  of  the  Stony  Creek  property,  be  applied  by  complain- 
ants to  its  payment;  and  tliese  now  are,  it  would  seem,  in  the 
hands  of  Mrs.  S.  and  Mr.  Hastings,  her  trustee. 

The  bill  should  be  dismissed,  and  the  parties  left  where  they 
have  placed  themselves. 

Tpie  Chancellor.  The  question  has  been  discussed  at  some 
length,  how  far  the  defendant's  answer  is  evidence.  The 
general  rule  is,  that  whatever  is  responsive  to  the  bill  is 
evidence  for,  as  well  as  against,  the  defendant.  But  there  is 
frequently  much  difficulty  in  a23pl3'ing  the  rule,  and  regard 
must  always  be  had  to  the  case  made  by  the  bill,  in  determining 
what  is,  and  what  is  not  responsive.  Is  the  fact  stated  in  the 
bill,  and  answered  by  defendant,  material  to  complainant's  case^ 
that  is,  must  it  be  proved  to  entitle  him  to  relief;  or  is  it  a 
circumstance  from  which  such  material  fact  may  be  inferred? — 
for  tlie  complainant  may  prove  his  case,  by  either  positive 
or  presumptive  evidence.  If  it  is,  the  answer,  as  it  regards 
such  fact,  is  responsive  to  the  bill,  and  is  evidence  in  the  cause. 
It  may  also,  sometimes,  be  evidence  of  a  fact  not  stated  in 
the*bill;    as  where  the  bill  sets  forth  part  of   complainant's 

case,  only,  instead  of  the  whole,  and  the  part  admitted 
[*295]  *and  stated  in  the  answer  shows  a  different  case  from 

274 


FIRST  CIECUIT,  SEPTEMBER,  lSi3.  200 

Schwarz  v.  Wendell. 

that  made  by  tlie  bill,  and  is  not  matter  in  avoidance 
merely.  As  where  a  bill,  filed  to  redeem  stock,  alleged  it  had 
been  pledged  for  live  hundred  dollars,  and  the  answer  stated  it 
was  pledged  for  eight  hundred  dollars,  in  addition  to  the  five 
hundred  dollars  stated  in  the  bill,  the  answer  was  held  to  be  re- 
sponsive. DunJiamv.  Jackson.,  6  Wend,  R.  22.  Here  the  an- 
swer, instead  of  being  responsive  to  a  particular  fact  stated  in 
the  bill,  was  responsive  to  complainant's  case,  which  the  answer 
denied,  by  showing  a  different  case.  But  where  the  answer 
does  not  show  a  different  case,  but,  admitting  the  case  made  by 
the  bill,  sets  up  new  matter  in  avoidance  of  it,  the  answer  is 
not  evidence  of  such  new  matter.  As  where  the  defendant  sets 
up  usury,  in  his  answer  to  a  bill  filed  to  foreclose  a  mortgage. 
Greenx.  TIart.,  1  J,  R.  850.  Such  are  the  general  principles, 
to  be  deduced  from  the  cases,  for  our  guide  in  determining  wliat 
parts  of  an  answer  are  responsive  to  the  bill.  Hart  v.  Ten 
Eycli',  3  J.  C.  R.  02,  and  note  at  p.  92;  Beckioith  v.  Butler.,  1 
Wash.  C.  C.  R.  224;  li'mggold  v.  Ringgold,  1  Harr.  &  Gill,  11, 
81 ;  Ilagthorp  v.  SooTc,  1  Gill  &  Johns.  R.  270;  13  Yes.  R.  47; 
7  Yes.  R.  404,  588;  2  Ball  &  Beat.  R.  382;  3  Russ.  R.  149;  19 
Yes.  R.  182;  Attorney -General  v.  Oaldand  County  Bank., 
ante,  90. 

A  different  exposition  of  the  rule  was  given  in  Woodcock  v. 
Bennet,  1  Cow.  R.  711,  and  also,  as  it  would  seem,  in  Green  v. 
Vandman,  2  Blackf.  R.  324.  In  the  first  of  these  cases,  it  was 
held  that  an  answer  to  statements,  or  focts,  contained  in  a  bill, 
whether  such  statements  or  facts  were  necessary  to  make  out 
complainant's  case,  or  related  to  matter  in  avoidance  of  it, 
merely,  was  nevertheless  responsive,  and  evidence  in  the  cause. 
This  exposition  of  the  rule  is  liable  to  several  objections.  It 
makes  defendant  a  witness  for  himself,  to  prove  his  de- 
fense, as  well  *as  a  witness  against  himself  to  prove  [^290] 
complainant's  case,  and,  if  it  be  right  that  the  matter  in 
controversy  between  the  parties  should  be  settled  by  the  de- 
fendant's oath  alone,  unless  disproved  by  two  witnesses,  or  one 
witness  and  corroborating  circumstances,  then  his  answer,  in 
all  cases,  should  be  evidence,  whether  resj^onsive  in  either  of 

275 


297  CASES  IN  CHANCEEY. 

Schwarz  v.  Wendell. 

the  senses  above  stated,  or  not.  To  make  the  rights  of  parties 
in  this  respect  depend  npon  the  drawing  of  a  bill,  looks  too 
much  like  sacrificing  right  to  professional  skill.  Defendant  is 
not  bonnd,  nor  can  he  be  required,  to  answer  any  statement  or 
fact  in  the  bill  not  necessary  to  make  out  the  complainant's 
case;  and,  when  he  does,  it  is  roluntary  on  his  part,  and  his 
answer,  for  that  reason,  should  not  he  binding  on  complainant, 
as  he  would,  in  no  case,  be  likely  to  disclose  what  would  make 
against  himself.  Defendant  cannot  be  a  witness  for  himself, 
Xor  is  there  any  hardship  in  the  rule;  for  he  may,  by  a  bill  of 
discoveiy,  make  complainant  a  witness  for  him  ^on  the  same 
terms  that  he  is  a  witness  for  complainant.  Clason  v.  Morris^ 
10  J.  R.  542,  and  Field  v.  Holland^  6  Cranch  R.  24,  are  cited 
by  the  Court  in  Woodcock  v.  Bennet^^vX  neither  of  them  sup- 
port that  case.  In  each  of  these  cases,  the  part  of  the  answer 
in  question  was  responsive  to  a  fact  stated  in  the  bill,  which 
it  was  necessary  for  complainant  to  prove,  to  make  out  his 
case.  ■ 

Wendell's  answer  in  all  its  material  statements,  is  responsive 
to  the  bill ;  and  the  case  must  be  decided  upon  the  answer,  and 
the  testimony  of  Stewart.  So  far  as  the  case  charges  defendant 
with  fraud,  it  is  clearly  disproved;  and  I  should  not  hesitate  for  a 
moment  to  dismiss  the  bill,  if  the  relation  of  trustee  and  cestui 
que  trust  had  not  existed  between  the  parties,  when  the  several 
transactions  stated  in  the  bill  took  place.  There  are  certain  rela- 
tions existing  in  society,  necessaiy  for  its  prosperity  and 
[*297]  well  *being,  and  which  it  is  the  policy  of  the  law  to  foster 
and  protect.  "With  that  view,  and  to  keep  individuals 
from  availing  themselves  of  these  relations  for  selfish  purposes, 
the  law  has,  in  some  cases,  imposed  a  disability,  on  persons  so 
situated,  to  deal  with  each  other  on  tlie  same  terms,  as  those 
on  which  they  are  allowed  to  deal  with  third  persons.  Tlie 
relation  of  trustee  and  cestui  que  trust  is  one  of  this  description 
A  trustee  to  sell  cannot  purchase  the  trust  property.  So  fully 
satisfied  are  courts  of  equity  of  the  necessity,  in  order  to  secure 
the  faithful  execution  of  the  trust,  of  removing  from  the  trustee 
all  hopes  of  personal  gain,  or  advantage  to  himself,  that  he  is 
276 


FIRST  CIRCUIT,  SEPTEMBER,  1843.  298 

Schwarz  v.  Wendell. 


not  allowed  to  purchase  the  trust  property  for  himself  or 
another,  at  public  or  private  sale  :  and,  if  he  does,  the  sale 
will  beset  aside,  or  a  re-sale  of  the  property  will  be  ordered,  for 
the  benefit  of  the  cestui  que  trast,  if  he  ask  it  in  a  reasonable 
time,  however  fair  and  honest  the  transaction  may  appear,  on  the 
part  of  the  trustee.  "  If,"  says  Lord  Eldon,  in  Exjparte  Bennett, 
10  Yes.  R.  385,  "  a  trustee  can  buy  in  an  honest  case,  he  may  in  a 
case  havino;  that  appearance,  but  which,  from  the  infirmity  of 
human  testimony,  may  be  grossly  otherwise."  The  law  on 
this  point  is  too  well  settled  by  adjudged  cases,  and  the  policy 
and  reasonableness  of  the  rule  too  obvious,  to  be  departed 
from.  Cam/phell  v.  Walker,  5  Ves.  R.  678  ;  Ex  parte  Ben- 
nett, 10  Yes.  R.  381  ;  Davoue  v.  Fanning,  2  J.  C.  R.  252. 

A  trustee   may,  however,   purchase    trust   property  of  his 
cestui  que  trust.     But  courts  of  equity  look  upon  such  trans- 
actions with  so  much  jealousy,  and  there  is  so  much  difficulty 
in  sustaining  them,  that  Lord  Erskine,  in  Morse  v.  Royall,  12 
Yes.  R.  372,  said  he  should  not  have  regretted  to  have  found 
that  the  rule  above  stated,  extended  to  the  case  of  a  trustee 
l>urchasing  of  the  cestui  que  trust.     And  Lord  Eldon, 
in  Coles  v.  Trecothick,  9  Yes.  R.  244,  says,  "  it  *  is  a  [*298] 
transaction  of  great  delicacy,  and  which  the   court  will 
watch  with  the  utmost  diligence  ;  so  much  so,  that  it  is  very 
hazardous  for  a  trastee  to  engage  in  such  a  transaction."     In 
this  case,  the  sale  was  sustained  ;  but  it  was  a  very  strong  case 
in  favor  of  the  trustee,  or,  rather,  for  his  father,  for  whom  he 
made  the  purchase  as  agent,  and  fully  justified  the  remark  of 
Lord  Eldon,  that  if  any  case  could  exist  for   relaxing   the  rule, 
by  consent  of  parties,  that  was  one.     In  Morse  v.  Royall,  the 
sale  was  also  sustained.     In  that  case  the  cestui  que  trust  was 
determined  to  sell,  and  frequently  teased  the  trustee  to  buy, 
who   was   reluctant,  but  finally  consented.     Some  years  after 
the  sale,   the   cestui  que    trust   becoming  dissatisfied,  it  was 
referred  to  a  third  person  to  say  what  further  consideration  the 
trustee  should  pay,  who  awarded  that  he  should  pay  as  much 
more  as  he  had  paid  in  the  first  instance.     On  these  and  other 
strong  circumstances,  favorable  to  the   trustee,    the   sale   Mas 


299  CASES  m  CHANCERY. 

Schwarz  v.  Wendell. 

sustained.  To  set  aside  sucli  sale,  it  is  not  necessary  to  show 
frand.  I^ox  v.  Mackreth,  2  Bro.  E.  400.  That  would  be 
placing  the  parties  on  the  ground  of  strangers,  dealing  with 
each  other  at  arm's  length.  The  Court  should  be  satisfied,  not 
only  that  there  was  no  fraud,  but,  that  no  use  had  been  made 
by  the  trustee  of  the  relation  existing  between  him  and  the 
cestui  que  trust,  to  bring  it  about  ;  that  it  was  fair  in  all  its 
parts,  and  such  a  transaction  throughout  as  the  trustee  himself 
would  have  approved  of,  had  it  been  with  a  third  person 
instead  of  himself.  When  the  Court  is  fully  satisfied  on  all 
these  points,  the  sale,  or  contract, — for  it  is  not  necessary  that 
it  should  be  a  sale  of  trust  property, — should  be  sustained  ; 
when  not,  it  should  be  set  aside. 

I  cannot  look  upon  the  agreement  for  the  purchase  of  the 
two- thirds  of  the  Erie  property  in  any  other  light,  than  as  a 
joint  speculation  between  Wendell  and  Mrs.  Schwarz. 
[*299]  *Mrs.  Schwarz  had  inherited  one-third  of  the  Erie  prop- 
erty from  her  father,  Abraham  Sheridan,  deceased,  and 
Wendell  held  this,  and  other  proj)erty,  amounting  to  $10,000, 
or  more,  in  trust  for  her.  A  few  days  before  the  agreement, 
Wight  applied  to  Wendell,  to  purchase  Mrs.  Schwarz's  share, 
if  the  other  two-thirds,  or  one  of  them,  could  be  procured,  and 
to  give  $30,000  for  the  whole,  or  $20,000  for  two-thirds. 
Wight,  about  the  same  time,  made  application  to  Mrs.  Schwarz, 
or  to  her  husband,  John  E.,  who  called  on  Wendell,  and  stated 
the  shares  could  be  bought  low  for  money,  if  the  heirs  residing 
in  Philadelphia,  to  whom  they  belonged,  had  not  heard  of  the 
rise  of  property  at  Erie;  and  proposed  to  him  to  raise  the 
money,  and  purchase  them,  offering  to  reward  him  well  for  his 
services.  This  Wendell  refused,  unless  he  could  have  half  of 
the  profits.  I^othing  further  was  done  at  this  time;  but,  a 
day  or  two  after,  John  E.  called  again,  and  agreed  to  Wendell's 
proposition.  A  day  or  two  more  elapsed,  when  the  wi'itten 
agreement  of  March  7th  was  drawn  up  by  Wendell,  and  signed 
l)y  him  and  John  E.  At  the  same  time,  a  note  for  $4,000  was 
signed  by  Mrs.  Schwarz,  and  endorsed  by  Wendell,  on  which 
the  money  was  obtained  at  the  bank  to  make  the  purchase. 
278 


FinST  CIRCUIT,  SEPTE]\1BER,  1S43.  300 

Schwarz  r.  Wendell. 

This  part  of  the  case  comes  within  the  rule  Laid  down  hy  Lord 
(Jh.  King,  Keecli  v.  Saiiford,  3  Eq.  Ca.  Abr.  741,  where  a 
trustee  applied  to  a  lessor  for  a  renewal  of  a  lease,  for  the  bene- 
lit  of  his  cestui  que  trusty  an  infant,  which  tlie  lessor  refused 
to  give.  The  trustee  then  took  a  lease  to  himself,  and  it  was 
decreed  that  the  lease  should  be  assigned  bj  him  to  the  infant. 
The  Chancellor  said  he  must  consider  it  a  trust  for  the  infant, 
"  for,  if  the  trustee,  on  refusal  to  renew,  might  hav^e  a  lease  to 
liimself,  few  trust  estates  would  be  renewed  to  cestuis  que  trust,' 
and,  though  it  might  seem  hard  that  the  trustee  was  the 
only  person  of  all  ^mankind  who  might  not  have  the  [*300 1 
lease,  jet  it  was  very  ])roper  that  the  rule  should  be 
strictly  pursued,  and  not  in  the  least  relaxed;  for  it  was  very 
obvious  what  would  be  the  consequence  of  letting  trustees  have 
the  lease,  on  refusal  to  renew  to  cestuis  que  trust. 

When  John  E.  applied  to  Wendell  to  raise  the  money,  and 
].)urchase  the  shares  of  the  co-heirs,  he  refused,  although  prom- 
ised a  liberal  compensation  for  his  services,  until  he  had 
secured  to  himself,  by  the  agreement,  an  equal  interest  in  the 
])urcliase.  I  will  not  say  he  was  wrong  in  refusing,  or  that  his 
duties  as  trustee  required  a  compliance  with  the  request,  al- 
■  though,  judging  of  things  as  they  then  appeared,  it  would  be  the 
means  of  making  an  advantageous  sale  of  the  trust  prop- 
erty at  Erie,  and  of  adding  something  to  the  trust  estate,  by 
by  way  of  profits  on  the  shares  to  be  purchased.  If  the  prop- 
osition, instead  of  coming  from  himself,  had  been  made  to 
him  by  the  cestui  que  trust,  he  should  have  declined  it.  What 
he  had  refused  to  do  as  trustee,  in  a  matter  so  closely  connected 
with  the  trust,  he  should  not  have  done  for  his  own  benefit. 
It  may,  as  observed  by  Lord  Ch.  King,  seem  hard  that  he 
should  be  the  only  person  of  all  mankind  who  should  be  ex- 
cluded from  making  such  an  agreement  with  the  cestui  que 
trust,  but  public  policy  requires  it.  The  object  of  the  rule  is 
to  secure  fidelity  on  the  part  of  the  trustee,  by  taking  from  him 
every  possible  motive  to  act  otherwise  than  for  the  interest  of 
his  cestui  que  trust.  He  had  it  in  his  power  to  defeat  the 
speculation;  and,  as  things  have  turned  out,  it  would  have  been 

27l> 


301  CASES  m  CHAXCEEY. 

Schwai'z  V.  Wendell. 

well  liad  it  never  taken  place.  The  money  to  make  the  pur- 
chase could  not  be  raised  by  the  cestui  que  trusty  without  his 
consent;  and  to  permit  a  trustee,  under  such  circumstances, 
to  impose  his  own  terms,  would  be  placing  the  cestui  que  trust 
entirely  at  his  mercy.  It  is  impossible  to  say  what  in- 
[^301]  fluence  such  ^considerations  may  have  had.  in  producing 
the  agreement  of  March  seventh. 

He  succeeded  in  purchasing  the  interest  of  one  of  the  heirs, 
and  took  a  deed  to  himself,  as  trustee.  Wight  did  not  come  to 
make  the  purchase,  but,  a  short  time  before  the  note  at  the 
bank  was  due,  a  Mr.  Fross  offered  to  purchase  a  third  of  the 
property,  at  $10,000.  He  informed  Mrs.  Schwarz  and  her 
husband  of  the  oifer,  and  advised  them  to  accept  it,  and  that 
the  note  at  the  bank  was  approaching  maturity,  and  he  wished 
to  take  it  up.  They  objected,  and  said  they  would  pro\dde  for 
the  payment  of  the  note.  He  then  wished  to  sell  his  share,  at 
any  rate;  and  Mrs.  Schwarz  and  her  husband  oifer  to  purchase 
and  pay  him  what  would  be  his  part  of  the  profits,  if  it  were 
sold.  They  propose  to  turn  out  a  bond  and  mortgage  against 
Joshua  Boyer,  in  part  payment,  and  to  give  their  note  for  the 
balance;  and  Stewart  was  emj^loyed  to  draw  an  assignment  of 
the  bond  and  mortgage.  He  did  so,  and  called  on  Mrs.  Schwarz 
to  execute  it.  She  refused,  saying  they  wanted  the  property 
for  other  purposes.  She  also  said,  defendant's  account  was  too 
high.  Defendant  then  requested  Mrs.  Schwarz  to  appoint 
another  trustee,  and  to  set  off  to  him  his  share  of  the  propertv. 
Mrs.  Schwarz  and  her  husband  again  offered  to  purchase  his 
interest,  on  the  terms  they  had  before  proposed,  except  as  to  the 
mode  of  payment.  Mr.  Hastings  was  appointed  to  succeed  the 
defendant  in  the  trust.  The  papers,  including  the  note  for  $3.- 
980.24,  were  made  out  and  executed  by  the  respective  parties. 
After  they  were  executed,  Mrs.  Schwarz  said  she  thought  Mr. 
Wendell  might  have  waited  for  his  share  until  the  property 
was  sold.     This  is  a  brief  outline  of  the  case. 

Defendant  was  the  first  to  propose  that  he  should  share  in 
the  profits  of  the  purchase;  and  this  after  he  had  refused 
[*302]  *to  raise  the  money  and  make  the  j)urchase  as  trustee. 
280 


FIRST  CIRCUIT,  SEPTEMBER,  1S43.  303 

Schwarz  v.  Wendell. 

AVhen  Fross  offered  to  purchase  a  third  of  the  property, 
he  proposed  to  sell  him  a  third  that  had  been  purcliased,  in 
wliich  he  had  an  interest,  and  not  the  tliird  belonging  to  the 
cestui  que  trust,  altiiough  it  was  with  a  view  of  selling  this 
last,  tliat  the  purchase  had  been  made.  When  he  gave  as  a 
reason  for  selling  it  separately,  the  payment  of  the  note  at  the 
bank,  they  offered  to  jjrovide  for  its  payment  from  other  sources; 
and  it  was  not  until  he  insisted  on  selling  his  share,  that  they 
pro2)osed  to  purchase  it.  And  after  Mrs.  Schwarz  had  refused 
to  execute  the  assignment  of  the  mortgage,  and  not  before,  he 
asked  to  be  discharged  from  the  trust,  and  to  have  his  share  set 
oft'  to  him.  We  do  not  see  the  cestui  que  trust  volunteering, 
and  urging  on  the  trustee,  in  one  important  step  taken  by  the 
])artios;  on  the  contrary,  they  appear,  for  tlie  most  part,  to  have 
oriiJ-inated  with  the  trustee,  and  to  have  been  taken  bv  the 
cestui  que  trufft  with  more  or  less  reluctance.  In  Morse  v. 
Roijall.,  Lord  Erskine  noticed  particularly  tliat  the  trustee  was 
not  the  first  to  propose  a  sale,  but  tliat  the  cestui  que  trust  was 
determined  to  sell,  and  urged  the  trustee  to  purchase. 

The  money  was  obtained  on  Mrs.  Schwarz's  note,  endorsed 
by  Wendell.  It  should,  I  think,  be  considered  a  part  of  the 
trust  fund,  because  it  was  obtained  on  the  iiote  of  the  cestui 
que  trust,  which  the  trust  fund  might  have  been  called  on  to 
pay.  Had  it  afterwards  been  paid  by  Wendell,  out  of  his  own 
funds,  it  would  have  been  a  good  charge  against  the  trust 
estate.  Defendant  says  in  his  answer,  Mrs.  Schwarz  signed  it 
to  save  him  the  necessity  of  procuring  an  endorser.  She  should, 
then,  have  endorsed  it,  and  not  signed  it  as  drawer.  The  con- 
tract states  it  to  have  been  the  note  of  Catharine  Schwarz,  en- 
dorsed by  Wendell,  and  speaks  of  Wendell's  interest  in 
the  *profits  of  the  purchase  to  be  made.  Defendant  [*303] 
cannot  be  allowed,  by  his  answer,  to  explain  away  the 
terms  of  the  written  contract,  and  to  say  it  is  different  from  what 
it  purports  on  its  face  to  be.  No  money  was  advanced  by  him, 
and  none  was  intended  to  be.  He  expected  to  pay  the  note,  at 
maturity,  with  the  money  to  be  received  from  Wight,  on  the 
sale  to  him.     The  land  was  conveyed  to  him  as  trustee,  and, 

2S1 


304  CASES  IN  CHANCEKY 


Schwarz  v.  Wendell. 


by  the  written  contract,  lie  stipulated  for  a  share  in  the  profits 
of  that  part  of  it,  only,  which  there  was,  at  the  time,  a  prospect 
of  selling  to  great  advantage. 

The  contract  of  March  7th,  for  these  reasons,  was  not  bind- 
ing in  equity  on  Mrs.  Schwartz,  the  cestui  que  trust;  and  I 
cannot  consider  anything  done  by  her  subsequently  as  a  free 
and  voluntary  confirmation  of  it,  with  a  knowledge  of  her 
rights.  She  appears  to  have  been  under  the  impression  that 
she  was  bound  by  it,  and  to  have  acted  accordingly. 

If  I  could  come  to  the  conclusion  that  defendant  was  enti- 
tled to  half  the  purchase,  I  should  still  doubt  whether  the  sale 
of  it  to  Mrs.  Schwarz,  under  the  circumstances,  and  for  tlie 
reasons  stated,  should  not  be  set  aside.  I  think  it  should  be. 
There  is  nothing  in  the  settlement  of  accounts,  when  the  trust 
was  transferred  to  Hastings,  to  prevent  it.  The  settlement  was 
no  waiver  of  her  rights,  unless  she  acted  at  the  time  with  a  full 
knowledge  of  what  her  rights  were,  and  with  an  intention  of 
waiving  them.  Nothing  of  the  kind  appears,  but  the  contrary 
is  clearly  to  be  inferred.  She  stated  at  the  time,  that  she 
thought  Mr.  "Wendell  might  have  waited  for  his  share  until  the 
property  was  sold. 

The  same  observations  would  apply  to  the  covenant  set  up 
in  the  plea,  if  it  extended  to,  or  reached  the  case  made  by  the 

bill. 
[*304]  *As  to  the  part  Mr.  Schwarz  took  in  the  business,  and 
the  supposed  guarantee  it  afforded  against  the  trustee's 
taking  any  advantage  of  the  position  in  which  he  stood  to  the 
cestui  que  trusty  I  think  it  should  have  no  bearing  on  the  case. 
It  was  the  duty  of  the  trustee  to  consult  and  advise  with  the 
cestui  que  trusty  and  not  Mr.  Schwarz.  The  very  object  of  a 
trust  for  a  married  woman  would,  in  many  cases,  be  defeated, 
if  the  wishes  and  inclinations  of  the  husband  were  to  be  con- 
sulted, instead  of  the  interest  of  the  cestui  que  trust.  It  would 
be  as  well,  at  once,  to  place  the  property  of  the  wife  at  the  dis- 
position of  her  husband. 

The  complainants  filed  their  bill  within  three  years  and  a 
half  after  the  note  was  given,  and  within  six  months  after  it 
282 


FlllST  CIRCUIT,  SEPTEMBER,  1S43.  30; 


Schwarz  r.  Wendell. 


became  due.  I  do  not  think  the  delay  unreasonable,  or  a  good 
•'•round  for  refusing  relief.  The  note  has  not  been  paid,  and  the 
bill  was  filed  soon  after  it  became  due,  and  complainants  were 
called  on  to  pay  it. 

No  charge  was  made  by  the  trustee  for  his  services,  M'hen 
the  trust  account  was  settled.  He  was,  as  he  stated  in  his  an- 
swer, induced  not  to  charge  for  his  services,  in  consecjuence  of 
the  handsome  sum  he  expected  to  realize  from  the  sale  of  the 
Va'io  pr()]>erty  to  the  cestui  que  trust.  He  was  entitled  to  a 
i-easonable  compensation  for  his  time  and  services  as  trustee. 
Ringgold  v.  lilnggold,  1  Harr.  &  Gill,  11,  83. 

A  decree  must,  therefore,  be  entered,  setting  aside  the  settle- 
ment of  January  28th,  1837;  and  there  must  be  a  reference  to 
a  Master  to  take  and  state  an  account  of  all  moneys  received  by 
defendant,  as  trustee.  In  taking  the  account,  the  IVIaster  mnst 
charge  defendant  with  the  amount  of  the  note  of  January  2Sth, 
1837,  for  $3,980.24,  with  six  per  cent,  interest  up  to  the  time 
it  became  due,  and  seven  ])er  cent,  interest  from  that 
time  to  the  taking  *of  the  account,  urdess  the  defendant  [*305] 
shall  cause  the  note  to  be  cancelled,  or  surrendered,  at 
or  before  that  time. 

And  he  must  allow  defendant  a  reasonable  compensation  for 
his  time  and  services  as  trustee,  with  interest  from  the  termi- 
nation of  the  trust.  The  question  of  costs  is  reserved  until  the 
coming  in  of  the  Master's  report. 

Note.  This  case  was  appealed  to  the  Supreme  Court,  but  was  finally 
settled,  without  any  further  proceedings. 


283 


i06  CASES  IN  CHANCERY 


Bailey  v.  Murphy. 


John  H.  Bailey  and  George  B.  Storm  v.  Seba  Mur- 
phy, Margaret  Murphy,  Dan  B.  Miller,  and  John 
J.  De  Graff. 

Under  the  statute  regulating  the  terms  on  which  non-resident  defendants,  in 
mortgage  cases,  are  permitted  to  appear  and  defend,  two  things  only  are 
required  of  the  defendant,  viz :  his  appearance  before  the  mortgaged  prem- 
ises are  sold  on  the  decree,  and  the  payment  of  such  costs  as  the  Court  shall 
award.  The  costs  only  are  left  discretionary  with  the  Court,  and,  on  the 
payment  of  them,  defendant  has  a  right  to  interpose  a  defense. 

The  statute  extends  to  aU  defendants  who  are  non-residents,  and  makes  no 
distinction  between  mortgagors  and  slibsequent  incumbrancers. 

Petition  by  a  non-resident  defendant  for  leave  to  come  in 
and  defend  a  mortgage  foreclosure. 

The  bill  in  tins  case  was  filed  to  foreclose  a  mortgage  given 
by  Murphy  and  wife.  A  decree  had  been  entered,  and  the 
premises  were  advertised  to  be  sold  by  a  Master.  John  J.  De- 
Graif,  a  non-resident  defendant,  presented  a  petition  to  be  let 
in  to  defend. 

The  petition  stated  that  defendant  was,  and  had  been  for  sev- 
eral years,  a  resident  of  the  city  of  Schenectady,  in  the  State  of 
New  York,  and  that  he  had  never  resided  in  the  State  of 
[*306]  Michigan.  That  he  had  not  been  served  *with  process,  and 
bad  no  notice  of  the  suit  until  within  the  last  few  days, 
when  he  was  informed  such  suit  was  pending,  and  that  he  was 
a  party  defendant.  That  ho  was  the  honafide  owner  and  holder 
of  a  second  mortgage  upon  the  premises,  executed  by  Mm-phy 
and  wife,  December  ITth,  1S39,  for  $1,100,  and  interest.  That 
he  had  made  a  full  statement  of  all  the  facts  and  circumstances 
in  relation  to  said  mortgage,  so  far  as  they  had  come  to  his 
knowledge,  to  his  counsel,  who  advised  liim  he  had  a  good 
defense  to  his  suit,  and  the  first  mortgage  to  be  foreclosed 
thereby. 

T.  Romeyn,  for  petitioner. 
A.  D.  Fraser,  contra. 
284 


FIRST  CIECUIT,  SEPTEMBER,  lS-13.  SOT 

Bragg  r.  Whitcomb. 

The  Chancellor.  AVliere  a  bill  is  filed  to  foreclose  a  mort- 
gage, against  a  non-resident  defendant,  who  fails  to  appear 
within  the  time  allowed  by  the  order  for  his  appearance,  the 
statute  provides  that  if  he,  at  any  time  before  the  sale  of  the 
mortgaged  premises,  shall  appear,  and  pay  to  the  complainant 
such  costs  as  the  Court  shall  award,  the  Court  shall  stay  the 
sale,  and  the  same  proceedings  shall  be  thereafter  had,  as  if  the 
defendant  had  been  served  with  process,  and  had  regularly  ap- 
peared.    R.  S.,  373,  §  S9. 

To  avail  himself  of  the  statute,  two  things  only  are  required 
of  the  defendant,  viz:  his  ap]:»earance  before  the  mortgaged 
premises  are  sold,  on  the  decree,  and  the  payment  of  such  costs 
as  the  Court  shall  award.  The  costs  only,  are  left  discretionary 
with  the  Court,  and,  on  the  payment  of  them,  defendant  has  a 
right  to  interpose  a  defense.  The  Court  will  guard  against  the 
abuse  of  this  right  by  defendants,  by  the  power  it  has  to  award 
costs.  The  statute  extends  to  all  defendants.  It  is  not 
limited  *to  the  mortgagor.  It  makes  no  distinction  [''307] 
])etween  the  mortgagor  and  a  subsequent  incumbrancer, 
and  the  Court  will  make  none. 

Motion  granted. 


Geokge  F.  Bragg  v.  Leverett  Whitcomb  and 
Horace  V.  AVhitcomb. 

Where  a  defendant  both  answers  and  demurs  to  different  partvsofthe  bill, 
and  the  demurrer  is  overruled,  complainant,  to  obtain  a  further  answer, 
must  except,  under  the  thirty-fourth  rule  of  the  Court,  to  the  answer 
already  put  in  by  defendant,  within  twenty  days  after  the  demui-rer  is 
overruled. 

Tnis  was  a  motion  to  set  aside  an  order  taking  the  bill  as 
confessed. 

Defendants  had  severally  answered  to  a  part,  and  demurred 
to  a  part  of  the  bill ;  and,  at  the  last  term,  the  demurrers  were 

285 


308  CASES  IX  CIIANCEEY 


Bragg  r.  Whitcomb. 


overruled  witliont  argument,  when  the  following  order  was 
entered: 

"  The  demurrer  filed  in  this  cause  to  the  bill  of  complaint 
coming  on  to  be  heard,  and  having  been  duly  argued  by  coun- 
sel for  respective  parties,  it  is  now  here  ordered  by  the  Court, 
that  said  demurrer  be,  and  the  same  is  hereby  overruled  with 
costs  to  the  plaintiff,  with  leave  to  the  defendants  to  answer, 
and  serve  a  copy  upon  complainant  in  forty  days,  on  payment 
of  the  costs  to  be  taxed." 

I^either  of  the  defendants  having  put  in  a  further  answer 
within  the  forty  days,  an  order  was  entered  taking  the  bill  as  con- 
fessed against  both  defendants,  which  it  was  moved  to  set  aside. 

J.  F.  Joy,  in  support  of  the  motion. 

E.  C.  Seaman^  contra. 

[*308]  ""TnE  Chancelloe.  The  complainant,  if  he  wished  a 
further  answer  from  either  of  the  defendants,  after  the 
demurrers  were  overruled,  shoiild  have  excepted  to  the  answer 
already  put  in  by  such  defendant,  within  twenty  days  after  the 
demurrer  was  overruled,  under  the  thirty-fourth  rule  of  tlie 
Court.  The  thirty-third  rule  is  applicable  to  that  class  of  cases 
only,  where  the  plea  or  demurrer,  or  pleas  or  demurrers,  (for 
there  may  be  several  pleas  or  demurrers  to  difi*erent  parts  of 
the  bill,)  extend  to  the  whole  of  the  bill;  and  not  where  the 
defendant  both  answers  and  pleads,  or  answers  and  demurs,  and 
the  plea  or  demurrer  is  overruled.  Kuypers  v.  The  Reformed 
Dutch  Church,  6  Paige  K.  570. 

The  order  overruling  the  demurrers  should  have  used  the 
word  demurrers  instead  of  demurrer,  as  each  of  the  defendants 
had  put  in  a  separate  demurrer;  audit  should  not  have  required 
the  defendants  to  answer,  and  serve  a  copy  of  their  answer,  in 
forty  days.  The  order  should  liave  been  that  the  demurrerfi 
be  overruled  with  costs,  and  nothing  more.  To  correct  the 
error  in  drawing  up  the  former  order,  let  an  order  be  now  en- 
tered, overruling  the  demurrers,  with  costs,  and  setting  aside 
the  order  taking  the  bill  as  confessed. 
286 


FIEST  CIRCUIT,  NOVEMBEIl,  1843.  309 


Johnson  r.  Johnson. 


*Sarah  H.  Johnson  v.  Abner  Johnson.      [*309] 

Where  a  petition  was  not  signed  by  the  petitioner,  but  was  verified  by  an  affi- 
davit signed  by  her,  which  stated  that  she  had  read  it,  and  knew  the  con- 
tents ot  it,  and  that  it  was  true,  it  was  held  to  be  a  sufficient  signature  of 
such  petition. 

Where  the  subpoena  was  served  on  the  keeper  of  the  State's  prison,  ins'tead 
of  on  the  defendant,  who  was  confined  therein,  the  service  was  held  suffi- 
cient. 

When  any  party  wishes  to  set  aside  the  proceedings  of  his  adversary  for  a 
mere  technical  irregularity,  he  must  make  his  application  at  the  first  op- 
portunity; and  a  defendant  who  has  not  caused  his  appearance  to  be  en- 
tered, is  entitled  to  no  more  indulgence  than  one  who  has  appeared. 

After  a  motion  has  been  denied  on  its  merits,  it  should  not  be  renewed,  with- 
out leave  of  the  Court,  on  the  same  facts,  or  any  new  facts  which  might 
have  been  included  in  the  first  motiou.  The  party  must  present  all  of  his 
case  at  once,  whether  he  have  several  grounds  or  not. 

Sentence  to  hard  labor  in  any  prison,  jail,  or  house  of  correction,  for  three  or 
more  years,  is  a  good  ground  of  divorce  under  the  statute. 

Upon  the  dissolution  of  a  marriage  by  divorce,  or  sentence  of  nullity,  for  any 
cause  excepting  adultery  of  the  wife,  she  is  entitled  to  the  immediate  pos- 
session of  all  her  real  estate,  in  the  same  manner  as  if  her  husband  were 
dead.'. 

This  was  a  motion  by  defendant  to   set  aside  a  decree  of 
divorce, 

IT.  H.  Emmons^  in  snpport  of  the  motion. 

G.  C.  Bates,  contra. 

The  Chancellor.  A  petition  was  filed  in  this  Court,  Angnst 
4th,  1841,  by  Sarah  11.  Johnson,  for  a  divorce  from  her  husband, 
Abner  Johnson,  and  a  decree  was  entered,  according  to  the 
prayer  of  the  petition,  on  the  4th  day  of  October  following. 
The  defendant  had  been  convicted  of  aiding  and  assist- 
ing in  counterfeiting  the  coin  of  *the  United   States,  [-310] 

'  See  Comp.  Laws.,  1871,  §§  47.50,  4751. 

2sr 


311  CASES  IX  CIIAN"CERY. 

Johnson  v.  Johnson. 

and  sentenced  to  imprisonment  in  the  State  penitentiary*,  at 
hard  labor,  for  the  term  of  six  years.  On  that  account  the 
divorce  was  granted.  On  the  lOtli  da}^  of  July,  1842,  he 
was  pardoned  by  the  President  of  the  United  States;  and 
he,  soon  after,  made  a  motion,  by  his  solicitor,  to  have  the 
decree  set  aside  for  irregularity.  The  motion  was  then  denied. 
It  is  now  renewed,  but  not  on  precisely  the  same  grounds,  as 
defendant  has  submitted  to  the  Court  an  answer,  which  he 
wishes  to  put  in  to  the  petition.  The  present  motion,  therefore, 
is  made  upon  two  grounds, — the  irregularity  of  the  proceed- 
ings under  the  petition,  and  the  merits,  if  any,  set  up  by  the 
proposed  answer. 

The  former  motion  rested  entirely  upon  the  following  irreg- 
ularities: First.,  that  the  petition  was  not  signed  by  the  jjeti- 
tioner;  Secondly.,  that  the  subpoena  was  not  served  upon  the 
defendant  personally,  but  was  left  with  the  keeper  of  the  pris- 
on ;  Thirdly.,  that  the  order  taking  the  petition  as  confessed, 
was  entered  two  days  before  the  forty  days  defendant  had  to 
answer  in,  after  the  return  day  of  the  subptsna,  had  expired; 
Fourthly .^  that  the  order  for  a  reference  to  a  Master  to  take 
proof  of  the  facts  charged  in  the  petition,  and  to  report  such 
proof  with  his  opinion  thereon,  was  entered  with  the  register 
as  a  common  order. 

The  petition  was  not  signed  by  the  petitioner,  but  it  was  ver~ 
ified  by  her  affidavit  at  the  foot  of  the  petition,  which  affidavit 
was  signed  by  her,  and  in  which  she  stated  she  had  read  the 
petition,  knew  the  contents  thereof,  and  that  it  was  true.  This 
was  a  sufficient  signing  of  the  petition,  or  recognition  of  it  as 
her  own  act,  to  answer  the  requirement  of  the  statute.  Willard 
V.  Willard,  4  Mass.  R  606. 

The   service  of    the  subpoena  was  well    enough.    Joyce  v. 
Joyce,  1  Hogan  11.  121.    When  the  defendant  is  absent,' 
[*311]  "^'tlie  subpoena  may  be  served  on  his  wife,  or  servant,  or 
some  member  of  his  family,  at  his  dwelling  house,  or 
place  of  abode.      Rule  16.     It  could  not  be   served  on  the  de- 
fendant  personally,  nor  could   it  be  served   on  his  wife,  she 
being  the  petitioner.     Service   on   the   keeper  of  the  prison, 
288 


FIRST  CIRCUIT,  XOYEMBER,  1S43.  312 

Johnson  v.  Johnson. 

under  the  circumstances,  was  the  only  service  that  could  he 
made. 

The  order  taking  the  pctiti(;n  as  confessed,  was  ])reniatnrely 
entered.  Nor  w^s  the  one  hundred  and  tirst  rule  <jt'  the  Court 
literally  complied  with,  in  oljtaining  the  order  of  reference  to 
take  proofs.  The  rule  says,  if  an}'  such  bill  (which  m  ist  be 
construed  to  include  petition,  when  the  party  proceeds  by  peti- 
tion,) is  taken  as  confessed,  or  the  facts  charged  therein  are  ad- 
mitted by  the  answer,  the  complainant  may  apply  to  the  Court, 
on  any  regular  motion  day,  or  in  term,  upon  due  proof  of  the 
irregularity  of  the  proceedings  to  take  the  bill  as  confessed,  or 
upon  the  bill  and  answer,  for  a  reference,  &c.  The  almost  in- 
variable practice  under  this  rule,  where  there  is  no  appearance 
for  defendant,  so  far  as  my  experience  goes,  is,  to  enter  the  or- 
der with  the  register  as  a  common  order,  as  in  mortgage  cases, 
against  absent  defendants  and  minors,  under  the  ninety-sixth 
rule.  I  see  no  objection  to  this  practice,  as  the  order  would  in 
all  cases,  upon  a  special  application  to  the  Court,  be  gi'anted  of 
course;  and,  after  the  proofs  are  taken,  the  whole  case  is  exam- 
ined by  the  Court  on  the  final  hearing. 

These  last  two  objections  are  purely  technical;  they  in  no 
way  affect  the  merits.  .  They  are  a  departure  from  the  rules  es- 
tablished by  the  Court,  to  regulate  its  proceedings,  and  nothing 
more;  and,  when  either  party  wishes  to  set  aside  the  proceed- 
ings of  his  adversary,  for  a  mere  technical  irregularity,  he  must 
make  his  application  at  the  first  opportunity.  He  must 
not  lie  by,  and  permit  his  ^adversary  to  take  step  after  [*312] 
step  in  the  cause,  without  so  much  as  notifving  him  of  his 
error,  for  the  purpose  of  afterwards  having  his  proceedings  set 
aside.  Hart  v.  Small,  4  Paige  E.  288;  NicJwls  v.  JVichols,  10 
AVend.  R.  560.  And  a  defendant  who  has  not  caused  his  ap])ear- 
ance  to  be  entered,  is  entitled  to  no  greater  indulgence,  in  this  re- 
spect, than  one  who  has  appeared.  Broion  v.  Chilcls,  17  J.  R. 
1;  Downs  v.  Wifherington,  2  Taunt.  R.  242.  There  is  no  rea- 
son why  a  defendant,  who  has  been  duly  served  with  ]>rocess, 
and  who  has  abandoned  all  defense,  by  neglecting  to  aj^pear  in 
the  case,  after  a  decree  has  been  rendered  against  him,  should 
YoL.  L— 19  289 


313  CxVSES  IX  CHANCERY. 


Johnson  r.  Johnson. 


liave  it  set  aside  for  a  mere  technical  irregularity,  which  would, 
probably,  not  have  occurred,  had  he  appeared.  More  especial- 
ly in  a  case  like  the  present,  where  the  petitioner  has  married 
since  the  entry  of  the  decree.  She  was  divorced  on  the  4th 
day  of  October,  1841,  and  married  July  8th,  1842;  and  the 
former  motion  was  not  made  until  the  26th  day  of  October 
followino".  Such  were  my  reasons  for  denying  the  first  motion, 
and,  on  reviewing  them,  I  am  satisfied  with  the  decision  then 
made. 

After  a  motion  has  been  denied  on  its  merits,  it  should  not 
be  renewed  without  leave  of  the  Court,  on  the  same  facts,  or 
any  new  facts  which  might  have  been  included  in  the  first 
motion.  The  party  must  present  the  whole  of  his  case  at 
once,  and  not  in  detached  parts;  and  if  he  have  several  grounds 
for  his  motion,  he  must  bring  them  all  before  the  Court  at  the 
same  time,  and  not  make  each  one  the  subject  of  a  distinct 
motion. 

Sentence  to  hard  labor  in  any  prison,  jail,  or  house  of  cor- 
rection, for  three  or  more  years,  is  a  good  ground  of  divorce 
under  the  statute.  Defendant  does  not,  therefore,  deny  peti- 
tioner's right  to  a  divorce;  but  asks  to  have  the^decree 
["•^313]  opened,  for  the  purpose  of  reviewing  the  *allowanc(^ 
made  for  her  support  out  of  his  estate.  It  appears  from 
the  proposed  answer,  that  James  Johnson  held  584  acres  of 
land  in  trust  for  defendant,  at  the  time  of  his  conviction;  171 
acres  of  which  are  now  held  by  petitioner,  worth  about  $1,000. 
After  his  conviction,  the  584  acres  of  land  were  conveyed  by 
James  Johnson  and  defendant,  and  two  other  tracts,  the  quan- 
tity of  which  is  not  stated,  by  defendant  and  ftetitioner,  to 
Jacob  M.  Howard,  to  pay  for  his  professional  services,  and  to 
pay  a  fine  of  $1,500,  which  was  part  of  defendant's  sentence,  in 
case  it  was  not  remitted;  after  which  Howard  was  to  re-convey 
the  balance  of  the  land  to  James  Johnson.  Twelve  days  after 
these  conveyances  to  Howard,  he  conveyed  171  acres  to  peti- 
tioner, for  her  support,  and  that  of  a  child  six  years  of  age. 
This  conveyance  is  set  forth  in  her  petition;  and  the  decree, 
instead  of  giving  these  lands  to  her,  as  defendant's  counsel  seems 

290 


FIRST  CIRCUIT,  NOVEMBER,  1S43.  31-t 

Westbrook  v.  Comstock. 

to  suppose,  only  directs  that,  for  the  support  of  herself  and 
cliikl,  slie  shall  have,  hold,  and  enjoy,  all  the  products  and  rents 
of  the  land  so  conveyed  to  her.  In  other  words,  the  decree  gives 
her  what  the  law  would  have  given  her,  had  no  mention  what- 
ever been  made  of  the  land,  in  drawing  up  tlic  decree.  UpoD 
the  dissolution  of  a  marriage  by  divorce,  or  sentence  of  nullity 
for  any  cause  excepting  adultery  of  the  wife,  she  is  entitled  U> 
the  immediate  possession  of  all  her  real  estate,  in  the  same 
manner  as  if  her  husband  were  dead.  R.  S.  330,  §  22.  Tlie 
decree,  therefore,  in  this  particular,  is  only  declaratory  of  tlie 
statute.  The  land  had  been  conveyed  to  her  by  Howard,  and  in 
law  belonged  to  her,  and,  by  the  divorce,  defendant  ceased  to 
have  any  interest  in  it.  The  answer  would  seem  to  s^t  up  a 
breach  of  trust  in  Howard,  in  conveying  to  petitioner.  That 
matter  however,  cannot  be  tried  in  this  suit;  and  there  are 
strong  reasons  for  supposing  the  conveyance  was  made 
with  the  *assent  of  all  parties.  Defendant  does  not  deny  [^314] 
it  was  with  his  assent,  or  state  that  it  was  contrary  to 
his  wishes. 

Motion  denied. 


Ebenezer  Westbrook  v.  Alfred  Comstock,  Harriet 
Comstock,  Euphemia.  Westbrook,  Henrietta  M. 
Westbrook  et  al. 

Where  money  was  directecVto  be  paid  into]Court,  under  a'decree,  tor  an  infant, 
and  her  guardian  accepted  a  deed  of  lands  in  lieu  thereof,  it  was  held, 
that  it  was  not  bindinj^  on  the  infant;  and  that  the  guardian  had  no  right 
to  receive  the  money,  much  less  land  in  lieu  of  it.^ 

This  Coui't  has  general  supervisory  power  over  the  persons  and  estates  of 
infants;*  and,  when  any  part  of  an  infant's  estate  is  in  litigation  here, 
it  is  under  the  immediate  guardianship  and  protection  of  the  Court;  and, 
where  money  belonging  to  an  infant  is  ordered  to  be  paid  to  the  register, 

*  See  Livingston  v.  Jones,  Harr.  Ch.  165. 
» See  Bond  r.  Loclcwood,  33  111.,  212. 

291 


315  CASES  m  CIIxVXCERY. 

Westbrook  v.  Comstock. 

neither  the  guardian  ad  litem  nor  general  guardian  of  the  infant  has  any 
right  to  receive  it. 

Before  this  Court  will  order  money  to  be  paid  to  a  guai-dian,  it  must  be  satis- 
fied that  he  has  given  sufficient  security  for  the  performance  of  his  trust, 
and  that  he  has  not  abused  it. 

A  legacy  left  to  a  married  woman  is  liable  to  an  attachment  issued  against  her 
husband;  but  the  attaching  creditor  must  take  it  subject  to  her  equity, 
which  is  to  have  the  whole,  or  so  much  as  the  Court  may  see  fit,  set  apart 
to  her  for  her  support.* 

Tins  was  a  hearing  on  exceptions  to  a  Master's  report. 

H.  H.  Emmons,  in  support  of  the  exceptions. 

E.  B.  Harrington,  contra. 

The  Chancellor.  The  Master  reports  that  Euphemia  and 
her  hnsband  have  been  paid  what  was  going  to  her  un- 
[*315]  der  the  decree;  that  the  settlement  made  by  *com- 
plainant  with  Henrietta  and  her  guardian  slionld  not  be 
treated  as  a  payment  of  her  share;  and  that  he  is  of  opinion 
that  no  debt  is  due  from  Alfred  Comstock,  the  hnsband  of 
Harriet,  to  John  H.  Westbrook,  the  attaching  creditor;  and, 
admitting  an  indebtedness,  to  'preserve  the  wife's  equity,  her 
share,  should  be  paid  into  Court,  as  directed  by  the  decree, 
with  leave  to  the  attaching  creditor  to  apply  to  the  Court,  to 
have  what  is  not  settled  on  her  a]:)plied  towards  paying  his 
■judgment,  should  he  succeed  in  obtaining' one. 

*  See  EweU's  Lead.  Cases  on  Infancy  and  Coverture,  337,  388,  472,  et  seq. 

By  the  passage  of  the  act  of  1855,  (Sess.  Laws,  420;  Comp.  Laws,  1871,  § 
4,803)  maixied  women  acquired  the  same  power  over  their  property,  in  all  re- 
spects, as  if  unmarried.  See  People  v.  Horton,  4  Mich.,  67;  Durfee  v. 
McClurg,  6  id.,  223;  Starkweathers.  Smith,  id.,  377;  Watson  v.  Thurber,  11 
id.,  457.  See  further  as  to  the  power  of  married  women  over  their  propertj' 
and  their  power  to  contract  concerning  the  same,  &c.,  since  the  passage  of 
said  act,  Penniman  v.  Perce,  9  Mich.,  509;  Wales  w.  Newbould,  id.,  45;  White 
V.  Zane,  10  id.,  333;  Tillman  v.  Shacheleton,  15  id.,  447;  Stiles  v.  Stiles,  14 
Mich.,  72;  Glenn  v.  Alcott,  11  id.,  470;  Berger  v.  Jacobs,  21  id.,  215;  Camp- 
bell V.  White,  22  id.,  178;  West  v.  Lai-raway,  28  id.,  464;  Amery  tJ.  Lord,  26 
•d.,  431;  De  Vriesr.  Conkhn,  22  id.,  255;   Rankin  v.  West,  25  id.,  195. 

292 


I 


FIIIST  CIRCUIT,  NOVEMBEIl,  lSi3.  310 

Westbrook  v.  Coinstock. 

The  settlement  with  Henrietta,  by  givinsf  her  a  deed  uv  mort- 
i^ai^e,  it  does  not  clearly  appear  which,  of  lands  of  much  less 
value  than  her  share,  and  the  subse<|uent  confirmation  of  it  by 
her  general  guardian,  are  acts  not  binding  on  her,  and  should 
in  no  respect  affect  her  rights  under  the  decree.  There  are 
stronc'  badares  of  fraud  attending]:  the  settlement.  But,  aside 
from  this,  the  guardian  had  no  right  to  receive  the  money, 
which  was  directed  by  the  decree  to  be  paid  into  Court,  much 
less  take  land  in  lieu  of  it.  This  Court  has  the  persons  and 
estates  of  infants  under  its  special  care  and  protection;  and  it 
is  sometimes  called  their  general  guardian,  from  its  general 
isuperintendence  over  their  persons  and  estates.  It  may  appoint 
a  guardian  for  an  ini'ant  who  has  no  guardian,  and  it  may,  for 
good  cause,  remove  a  testamentary  guardian,  or  one  appointed 
by  a  judge  of  probate.  Every  guardian,  however  appointed, 
is  responsible  here  for  his  conduct,  and  may  be  removed  for 
misbehavior.  1  J.  C.  R  99;  2  J.  C.  R.  439;  2  Paige  R.  374; 
Wood  v.  Wood,  5  Paige  R.  596.  It  follows,  from  this  gen- 
eral supervisory  power  of  the  Court,  that  when  any  part  of  an 
infant's  estate  is  in  litigation  here,  it  is  under  the  immediate 
guardianship  and  protection  of  the  Court;  and  consequently, 
that,  where  money  belonging  to  an  infant  is  ordered  to 
be  paid  to  the  "^register,  neither  the  guardian  ad  litem,  [*316] 
nor  general  guardian  of  the  infant,  has  any  right  to  re- 
ceive it.  Before  the  Court  will  order  it  to  be  paid  to  the  gen- 
eral guardian,  it  must  be  satisfied  he  has  given  sufficient  secu- 
rity for  the  performance  of  his  trust,  and  that  he  has  not 
abused  that  trust.  Especially  in  a  case  like  the  present, 
where  be  had  not  applied  to  the  Court  to  be  admitted  to  de- 
fend the  suit,  and  another  had  been  appointed  for  that  pur- 
pose. 

Harriet's  share  was  liable  to  the  attachment  issued  against 
Alfred  Comstock,  her  husband,  but  the  attaching  creditor  must 
take  it  subject  to  the  wife's  equity,  which  attaches  to  the  fund, 
it  being  a  legacy.  This  equity  is  a  right  to  have  the  whole,  or 
such  part  of  the  fund  as  the  Court  may  think  proper  in  the 
exercise  of  a  sound  discretion,  set  apart  to  her  for  her  support. 

293 


317  CASES  m  CHANCERY. 


Westbrook  p.  Comstock. 


Kenney  v.  Udall,  5  J.  C.  E.  464;  Van  Epps  v.  Van  Deusen, 
4  Paio-e  R.  64.  After  tliis  has  been  done,  the  balance,  if  any, 
will  belong  to  the  attaching  creditor,  should  he  succeed  in  ob- 
taining judgment  in  the  attachment  suit,  and  he  may  present 
his  petition  to  have  it  paid  to  him  on  his  judgment.  To  per- 
mit complainant  to  pay  the  money  to  the  attaching  creditor, 
would  be  to  deprive  the  wife  of  her  equity,  or  make  it  neces- 
sarv  for  her  to  file  a  bill  to  prevent  its  passing  into  his  hands 
discharged  of  her  equity.  The  decree  requires  the  money  to 
be  paid  into  Court  by  complainant,  and  if,  in  consequence  of 
the  attachment,  either  he  or  Harriet  must  file  a  bill  to  protect 
his  or  her  rights,  it  is  better  he  should  do  it  to  protect  himself, 
than  that  she  should  do  so,  to  preserve  her  equity.  If  the  at- 
taching creditor,  after  he  has  obtained  judgment,  instead  of 
presenting  his  petition  here,  should  persist  in  proceeding  at 
law,  this  Court  will  restrain  him  by  injunction  at  the  suit  of 
complainant.  I  hardly  think  that,  however,  will  be  necessary. 
It  is  very  questionable  whether  he  can  recover  a  judg- 
[-317]  ment  against  ^Comstock;  whether  Comstock  is,  in  fact, 
owino-  him  anything.  I  am  inclined,  from  the  evidence, 
to  believe  the  attachment  suit  was  got  up  by  complainant  him- 
self, for  the  purpose  of  embarrassing,  if  not  preventing,  a  sale 
of  his  land,  by  reason  of  his  default  to  pay  the  money  as  required 
by  the  decree. 

There  is  no  exception  to  the  report  in  regard  to  Euphemia's 
share. 

The  exceptions  must  be  overruled,  and  the  Master's  report 
confirmed. 


294 


FIRST  CIRCUIT,  NOVEMBER,  1S43.  318 

Albany  City  Bank  r.  Dorr. 


The  Albany  City  Bank  v.  Josiau  II.  Dohk. 

A  plea  must  rest  the  defense  upon  a  single  point;  and  a  plea  containing  two 
distinct  points,  is  bad.* 

The  return  of  an  execution  nnsati.sfied,  is  conclusive  between  the  parties  to  a 
judgment  creditor's  bill,  when  the  return  is  good  on  its  face,  and  has  not 
been  jnade  by  collusion  between  the  creditor  and  officer,  or  by  direction  of 
the  creditor. 

An  execution  creditor  is  not  bound  to  point  out  property  to  be  levied  on ;  he 
has  done  all  that  the  law  r  'quires  of  him,  when  he  has  phiced  his  execu- 
tion in  the  hands  of  the  sheritt',  whose  duty  it  is  to  make  the  money. 

Hearing  on  plea  to  judgment  creditors  bill  and  motion  tor 
receiver. 

The  plea  stated  that  at  the  commencement  of  the  suit  at  law, 
the  rendition  of  the  judgment,  the  issuing  and  return  of  the 
execution,  and  on  putting  in  his  plea,  defendant  was  seized  and 
possessed,  in  his  own  right,  in  fee  simple,  of  certain  tracts  or 
parcels  of  land,  describing  them,  situate  in  Wayne  county, 
where  the  judgment  was  obtained;  and  also  of  certain 
other  tracts  or  parcels  of  land  ""in  the  State,  describing  [*318) 
them  by  their  section,  township  and  range,  but  not  by 
the  county  in  which  they  w'ere  located.  It  then  averred  the 
whole  of  said  land  was  free  from  incumbrance,  and  of  greater 
value  than  the  amount  of  the  judgment;  that,  after  the  suit  at 
law  was  commenced,  defendant  called  on  plaintiff's  attorneys, 
\vho  were  the  solicitors  in  the  present  suit,  and  placed  before 
them  his  title  deeds  to  all  of  the  aforesaid  land,  except  that  part 
(»f  it  which  was  in  Wayne  county,  and  ottered  to  turn  out  a  suffi- 
cient quantity  of  it  to  pay  the  debt,  and  costs  that  had  been 
made,  to  be  selected  by  said  attorneys,  at  a  stated  valuation; 
and  informed  them  he  should  continue  to  hold  it,  and  that  it 
would,  at  all  times,  be  subject  to  any  execution  that  might  h.; 
issued  on  the  judgment  to  be  obtained  against  him,  and  that 
he  would,  at  any  time,  turn  it  out  to  be  levied  upon.     It  also 


1  See  Carroll  v.  Potter,  post,  355. 

205 


319  CASES  m  CIIANOEIiy. 

Albany  City  Bank  v.  Dorr. 

stated,  that  when  the  execution  was  placed  in  the  sheriff's 
hands,  -\vlien  it  was  to  be  returned,  and  during  the  intervening 
period,  the  said  attorneys  were  aware  defendant  held  said  real 
estate,  and  was  ready  to  turn  it  out  to  be  levied  upon ;  that  they 
did  not  give  the  sheriff  directions  to  levy  on  the  land  in  AVayne 
county;  that  defendant  was  not  called  on  to  pay  the  execution 
by  the  sheriff,  or  to  turn  out  property  to  be  levied  upon;  that 
defendant  was  ignorant  of  the  issuing  of  the  execution  until 
the  bill  was  filed,  and  that  no  alias,  or  plitries  execution,  had 
been  issued  into  the  other  counties,  in  which  a  part  of  the  real 
estate  is  situated. 

Barstow  c&  Zockwood,  in  sujDport  of  the  motion  and  against 
the  plea. 

I.  The  bill  in  this  case  is  an  ordinary  creditor's  bill,  upon 
which  an  injunction  has  been  obtained,  and  is  now  in  force 

against  the  defendant.     On  such  a  bill,  a  receiver  will  be 
[*319]  granted  as,  of  course,  if  the  equity  of  tlie  bill  is  "^not  de- 
nied.    4  Paige  R  575;  2  Id.  3tt2-  7  Id.  58;  2  Hoff.  Ch. 
Pr.  126. 

A  plea  having  been  put  in  in  this  case,  all  the  material  facts  in 
the  bill  are  admitted;  and  a  receiver  will  be  granted  unless  the 
plea  is  well  pleaded,  and  good  in  substance,  and  constitutes  a 
a  true  and  good  defense  to  the  action.  For,  if  the  plea  is  such 
an  one  as  would  be  overruled  on  an  argument  as  to  its  suffi- 
ciency, it  is  a  bad  plea,  and  the  defendant  can  gain  nothing  by 
it.     4  Paige  P.  178.  '' 

II.  The  plea  in  this  case  is  multifarious.  Various  facts  can- 
not be  pleaded  in  one  plea  unless  they  tend  to  a  single  point, 
and  a  plea  containing  more  than  one  distinct  point,  is  bad  for 
multifariousness.  Story  Eq.  PI.  496,  497,  504;  2  Ves.  &  B.  E. 
153;  3  J.  C.  E.  388;  6  Ves.  E.  17;  7  J.  C.  E.  214;  15  Ves.  E. 
377;  1  Edw.  E.  66. 

This  plea  sets  up  two  distinct  matters,  viz:  First,  that  de- 
fendant has  lands  in  "Wayne  county,  known  to  the  plaintiff's 
attorneys,  and  alleges  that,  although  execution  has  issued  into 
that  county,  they  did  not  point  out  the  lands  to  the  sheriff;  and 
296 


FIRST  CIRCUIT,  NOVEMDKIi,  1S43.  VrH) 


Albany  City  Bank  v.  Dorr, 


that  the  sheriff  did  not  call  upon  the  defendant;  and,  Secomlhj, 
it  undertakes  to  set  up  that  the  defendant  had  and  has  other 
lands  (where  situated  it  is  not  said,)  known  to  the  plaintiff's 
attorneys,  in  the  State  of  Michigan,  and  alleges  that  no  execu- 
tion has  issued  to  any  county  except  Wayne. 

These  defenses  are  not  only  distinct,  but  inconsistent;  fur,  if 
defendant  had  sufficient  lands  in  AVayne  county,  and  the  sher- 
iff neglected  his  duty,  and  the  pUxintiff"  was  not  responsible  tor 
such  neglect,  he  certainly  was  not  guilty  of  bad  faith  in  not 
issuing  execution  into  another  county. 

III.  Though  these  different  grounds  of  defense  set  forth  in 
the  plea  render  it  multifiirious,  neither  of  them  constitutes  a 
good  defense  to  the  equity  of  the  bill. 

1.  The  misconduct  of  the  sheriff'  in  not  calling  upon 

the  ■■■■defendant,  cannot  be  set  up  as  a  defense  to  this  [*320] 
action ;  the  party  must  look  to  the  sheriff'.     7  Paige  R. 
56;  2  id.  419. 

2.  The  sheriff's  return  is  conclusive,  in  this  suit,  as  to  the 
facts  contained  in  it,  and  it  is  not  competent  for  the  defendant 
to  set  np  facts  contradicting  it,  to  wit,  that  defendant  had  lands 
in  the  county.  The  proper  remedy  is  by  application  to  set 
aside  return.  2  Paige  P.  419;  Cow.  &  II.  notes  to  Ph.  Ev. 
1087;  IT  Mass.  K  601;  10  Pick.  R.  169;  11  Mass.  P.  313. 

3.  An  attorney,  or  plaintiff,  is  not  obliged  to  point  out  prop- 
erty for  the  sheriff  to  levy  upon.  He  does  his  duty  by  deliver- 
ing the  execution  to  the  officer,  who  is  bound  to  find  property, 
if  there  be  any,  at  his  peril. 

4.  The  plea  must  |_be  certain,  and  aver  tacts  explicitly,  not 
leaving  them  to  be  inferred  by  argument.  Story  Eq.  PI.  500. 
There  is  no  allegation  in  tlie  plea,  from  which  it  can  be  gath- 
ered, except  by  distant  implication,  that  defendant  had  lands 
in  any  county  but  Wayne. 

5.  If  there  is  sufficient  averment  that  certain  lots  of  land  set 
forth  in  the  plea,  were  out  of  the  county  of  Wayne,  it  should 
also  set  forth  that  they  were  of  sufficient  value  to  pay  the  debt; 
thus  sliowing  a  perfect  legal  remedy,  if  executions  had  been 
issued  to  other  counties. 

297 


321  CASES  IX  CHAXCERY. 

Albany  City  Bank  v.  Dorr. 

TV.  All  execution  was  issued  into  Wayne  county  where 
judgment  was  obtained,  and  where  defendant  resides,  in  which 
it  is  most  probable  that  he  would  have  propert}-,  and  the  plea 
alleges  that  lie  has.  This,  M^e  insist,  is  sufficient.  6  Paige  R. 
273;  8  id.  130;  7  id.  85,149. 

1.  There  is  no  case  to  be  found,  deciding  that  more  than  one 
execution  must  issue,  except  where  defendants  are  numerous, 
and  reside  in  different  counties. 

2.  There  are  no  other  defenses  on  the  ground  of  want  of 
[*o21]  a  bona  fide  attempt  to  collect  the  debt  at  law,  *enumer- 
ated,  than  the  following:  First,  collusion  with  the 
sheriff;  and,  Second,  issuing  execution  into  a  remote  county, 
when  complainant  is  aware  that  defendant  bad  property  in  the 
(iounty  where  he  resided,  within  the  jurisdiction  of  the  Court ; 
in  which,  case  it  is  necessary,  not  only  for  a  party  to  show  that 
he  resided,  but  also  had  visible  property  there.  Both  these 
things  must  be  shown,  neither  of  itself  constituting  a  defense. 
3  Paige  R.  312;  8  id.  130. 

3.  If  the  defense  is  good,  the  remedy  in  this  Court,  by  bill, 
is  a  mere  nullity.  But  one  execution  can  be  issued  at  a  time, 
and  if  the  defendant,  (as  might  well  be,)  should  have  lands  in 
several  counties,  and  sufficient  in  no  one  of  them  to  satisfy  the 
<lebt,  it  might  be  several  years  before  all  the  executions  could 
l)e  returned.  And  to  support  a  creditor's  bill,  the  execution 
cannot  be  returned  before  the  return  day. 

•4.  All  that  is  required,  is  a  hona  fide  attempt,  and  if,  after 
the  return  of  an  execution  and  before  the  filing  of  a  bill,  de- 
fendant acquires  property  in  the  same  county,  and  notifies  com- 
plainant, it  will  be  no  defense.  And  the  issue  of  a  second 
execution  not  yet  returned,  is  no  bar.     7  Paige  R.  149;  6  id. 

273. 

It  is  not  necessary  that  every  legal  remedy  should  be  ex- 
hausted, to  maintain  a  creditor's  bill.  The  statute  makes  the 
return  oi  fi.  fa.  i\\Q  ground  of  jurisdiction;  and,  under  the 
equity  of  the  statute,  the  Court  simply  require  that  the  execu- 
tion should  have  been  issued  in  good  faith.  7  Paige  R.  448, 
149;  2  Iloff.  Ch.  Pr.  117. 
298 


FIEST  CIRCUIT,  NOVEMBER,  1S43.  322 

Albany  City  Bank  v.  Don*. 

Joy  c5  Pointer,  in  su])port  of  tlie  plea. 

I.  This  is  a  good  plea.  It  proves  that  the  remedy  at  law  was 
not  exhausted;  and  it  must  be  exhausted  fairly  and  hona 

fide  before  this  bill  can  be  sustained.     3  Paige  *R.  311 ;  p322] 

2  IIofF.  Pr.  IIS;  Freeman  v.  Ifichigan  State  Baiik^ 
ante  62. 

The  case  of  Child  v.  Brace,  4  Paige  R.  315,  elearly  shows 
that  where  there  is  known  property  of  the  defendant  in  any 
county,  into  which  process  may  run,  or  if  the  defendant  is  will- 
ing to  turn  out  property  in  any  such  county,  the  execution  must 
be  sent  there,  or  the  remedy  is  not  exhausted,  and  the  bill  must 
not  be  filed.  See  7  Paige  R  064;  Stafford  v.  Hulbert,  Harr. 
Ch.  R.  435.  In  this  case  the  plea  shows  that  the  attorneys  had 
sufficient  notice  of  the  existence  of  property  which  they  might 
have  caused  to  be  levied  upon. 

II,  The  silence  of  the  attorneys  operates  as  a  fraud  on  the 
defendant.  They  were  bound  in  good  faith  to  inform  the  sher- 
iff, of  the  existence  of  property. 

The  Chancellok.  The  objection  to  the  plea  tor  multifar- 
iousness is  well  taken.  It  sets  up  two  distinct  points;  First, 
that  the  execution  was  improperly  returned  unsatisfied;  and, 
Second,  that,  as  defendant  was  the  owner  of  real  estate  out  of 
the  county  of  Wayne,  and  had  informed  complainant's  solici- 
tors of  that  fact,  at,  or  about,  the  time  the  action  was  com- 
menced at  law,  complainant  should  have  taken  out  an  alias 
execution,  directed  to  the  sheritf  of  the  county  in  which  such 
real  estate  is  situated.  Either  of  these  positions,  if  well  taken, 
would  be  a  good  defense  to  the  bill ;  and  the  evidence  that  would 
establish  one,  would  not  establish  the  other.  They  arc  as  dif- 
ferent from  each  other  as  two  separate  pleas.  The  first  denies 
a  proper  return  of  the  execution;  the  other,  conceding  that 
point,  insists  that  an  alias  execution  should  have  been  issued. 
A  plea  must  rest  the  defense  upon  a  single  point,  and  a  plea 
containing  two  distinct  points  is  bad,     Goodrich  v.  Pendleton, 

3  J,  C,  R.  384,     The  plea  must,  therefore,  be  overruled, 
*But,  as  there  is  a  motion  for  a  receiver,  it  is  nee-  [*323] 

299 


32i  CASES  IX  CHANCERY. 

Albany  Citj^  Bank  v.  Dorr. 

essarj,  in  order  to  dispose  of  that  question,  to  decide  whether 
either  of  tlie  grounds  taken  by  defendant  would  be  a  good  de- 
fense, if  properly  pleaded. 

To  show  that  the  execution  was  improperly  returned  unsatis- 
fied, the  plea  states  the  following  facts:  1st.  That  defendant 
now  is,  and  that  he  was,  when  first  sued  at  law,  and  from  that 
time  to  the  present  has  been,  the  owner  of  unincumbered  real 
estate,  situate  in  the  connty  of  Wayne,  and  other  parts  of  the 
State,  sufiicient  in  value  to  pay  the  judgment.  2d,  That  after 
he  had  beeu  sued  at  law,  he  called  on  plaintift's  attorneys,  who 
are  solicitors  in  the  present  suit,  and  placed  before  them  his 
title  deeds  to  all  of  said  real  estate,  except  that  part  of  it  situ- 
ated in  "Wayne  county,  and  offered  to  turn  out  a  sufiicient  quan- 
tity of  it,  to  be  selected  by  said  attorneys,  to  pay  the  debt  and 
costs,  at  a  stated  valuation,  and  informed  them  that  he  should 
continue  to  hold  it,  and  that  it  would,  at  all  times,  be  subject 
to  any  execution  that  might  be  issued  on  the  judgment  to  be 
rendered  in  said  suit,  and  that  he  would,  at  any  time,  turn  it 
out  to  be  levied  upon.  3d.  That  plaintiff''s  attorneys  were 
aware  he  had  such  real  estate,  both  when  the  execution  was 
issued,  and  when  it  was  returned,  and  that  tliey  did  not  give 
the  sherifi'  directions  to  levy  on  it.  4th.  That  defendant  was 
not  called  on  by  the  sherift'  to  pay  the  execution,  or  to  turn  out 
]n-operty  on  it;  and  that  he  was  uninformed  of  the  issuing  of 
the  execution,  until  the  bill  was  filed. 

These  facts,  conjointly,  do  not  form  a  good  defense  to  the  bill. 

They  show  that  the  oflicer,  in  neglecting  to  call  on  defendant 

with  the  execution,  did  not  do  his  duty;  but  they  show  nothing 

more.      Complainant  was  not  bound  to  go  with  the  officer  to 

defendant,  or  to  point  out  property  to  be  levied  upon. 

[*324]  He  did  all  the  law  required  of  him,  when  *he  placed  his 

execution  in  the  hands  of  the  sherifi",  whose  duty  it  was 

to  make  the  money.     If  the  sherifi"  has  not  done  his  duty,  and 

defendant  is  injured,  he  must  look  to  the  ofiicer  for  redress.    The 

neo-lif^-ence  of  the  sheriff  is  no  defense.     The  return  to  an  exe- 

cution  is  conclusive  between  the  parties,  when  good  upon  its 

face,  unless  it  has  been  made  by  collusion  between  the  creditor 

300 


FIEST  CIIICL^IT,  ]S'OVEMBER,  1S43.  325 

Albany  City  Bank  v.  Dorr. 

:iud  oflicer,  or  by  tlie  direction  of  the  ibniier.  There  wouhl  be 
no  end  to  litigation  in  this  class  of  cases,  if  this  Conrt  would  go 
behind  the  officer's  return.  It  might,  with  as  much  propriety, 
go  behind  the  judgment  itself,  and  allow  what  had  been  ad- 
judged at  law  to  be  litigated  anew  here,  as  to  inquire  into  the 
regularity  of  the  proceedings  at  law.  In  no  case  has  this  Court 
gone  that  length.  If  the  officer  improperly  returned  the  execu- 
tion unsatisfied,  defendant  should  have  applied  to  the  Circuit 
Court,  and  had  it  set  aside.  Stores  v.  KeUey,  2  Paige  li.  418; 
McElwain  v.  Willis,  9  AV'^end.  K.  5G0,  per  Nelson  J. ;  Saii- 
fordv.  Sinclair,  8  Paige  II.  373;  Shottenkirh  v.  Wheeler,  3 
J.  C.  R.  275. 

All  that  the  statute  requires  to  give  this  Court  jurisdiction, 
is  a  return  of  the  execution  unsatisiied,  in  whole  or  in  part.  In 
Smith  V.  Thompson,  ante  1,  the  execution  was  returned  before 
the  return  day.  On  that  account  it  was  held  to  be  bad,  as  the 
defendant,  after  the  return  of  the  execution,  and  within  its 
lifetime,  might  have  had  property  to  satisfy  it.  The  return 
in  that  case  was  bad  upon  its  face.  In  Williams  v,  ITuh- 
hard,  ante  28,  the  execution  was  returned  raisatislied  by  direc- 
tion of  the  plaintiff,  as  appeared  by  the  return.  The  return 
was  held  insufficient,  because  it  was  not  made  on  the  respon- 
sibility of  the  officer,  but  by  the  direction  of  the  plaintiff,  who 
had  a  riffht  to  have  his  execution  returned  in  that  wav,  if  he 
chose;  and  because  the  officer  could  not,  in  such  a  case,  be  sued 
for  a  false  return.  In  Wharton  v.  Fitch,  ante  143,  the 
■"plaintifi''3  attorney  instructed  the  sheriff  not  to  levy  on  [-325] 
land,  and  the  officer  returned  the  execution  unsatisfied, 
although  the  defendant  offered  to  turn  out  land  to  be  levied  on, 
when  the  sheriff  called  on  him  with  the  execution.  Here  was 
a  collusion,  or  at  least  an  understanding  between  the  plaintiff's 
attorney  and  the  officer,  not  to  make  the  money  out  of  real 
estate.  Nothing  of  this  kind  is  set  up  by  the  defendant  in  his 
plea.  There  is  no  pretense  that  the  officer  was  instructed  not 
to  levy  on  real  estate,  or  to  return  the  execution  without  search- 
ing for  property  to  satisfy  it,  or  calling  on  defendant  to  pay  it. 
But  defendant  seeks  to  raise  an  equity  in  his  favor  out  of  the 

301 


326  CASES  IX  CIIAXCEllY. 

Albany  City  Bank  v.  Dorr. 

offer  made  by  him,  soon  after  he  was  sued  at  law,  to  turn  cmt 
real  estate  in  payment  of  the  debt;  and  out  of  what  took  place 
at  that  time  between  him  and  complainant's  attorneys.  This 
oifer  to  pay  the  debt  in  land,  at  a  stated  valuation,  did  not 
cliange  the  rights  of  the  parties,  who  then  stood,  and  still  stand, 
in  the  relation  of  debtor  and  creditor  to  each  other.  It  im- 
posed no  legal  or  moral  obligation  on  the  creditor,  to  receive 
lands  in  payment  of  his  debt;  and,  consequentlj",  it  cannot  be 
the  basis  of  a  new  equity  or  right  between  the  parties.  If  de- 
fendant had  tendered  money  instead  of  land,  the  case  would 
have  been  different;  and  he  might  have  taken  the  money,  into 
Court,  and  pleaded  the  tender  in  bar  of  the  further  prosecution 
of  the  action.  While  defendant  insists  that  it  was  the  com- 
plainant's duty  to  inform  the  officer  defendant  had  lands  within 
his  bailiwick,  and  to  point  them  out  to  be  levied  on,  he  seems 
to  forget  he  was  under  a  greater  obligation  to  pay  the  judgment 
without  waiting  for  an  execution. 

As  to  the  alias  execution,  this  case  differs  widely  from  Frtu-- 
man  v.  Michigan  State  Bank,  ante  62.     In  that  case,  within 

the  lifetime  of  the  execution,  and  while  it  was  in  the  hands 
[*326]  of  the  sheriff,  the  bank  informed  complainant  it  "^had 

sufficient  unincumbered  real  estate,  in  Saginaw  au-l 
Lapeer  counties,  to  pay  the  judgment,  and  offered  to  turn  it  out 
to  be  levied  on  and  sold,  if  complainant  would  send  an  al'ac^ 
execution  into  either  of  those  counties.  The  value  of  tlie 
property  was  alleged  to  be  sufficient  to  pay  the  judgment. 
Here,  the  value  of  the  property  out  of  Wayne  county  is  nut 
stated.  In  that  case,  the  Court  said  the  complainant  should 
have  had  his  execution  returned,  and  taken  out  an  alta^, 
directed  to  the  sheriff  of  the  proper  county,  and  that  the  exe- 
cution, for  that  purpose,  might  have  been  returned  in  vacation, 
without  waiting  for  the  return  day.  The  alias,  therefore. 
might  have  been  made  returnable  on  the  day  the  first  executio]i 
was  returnable,  and,  if  sufficient  money  had  not  been  made  on 
it  to  satisfy  the  judgment,  the  complainant  might  still  have 
filed  his  bill  when  he  did.  He  would  have  sustained  no  delay 
in  the  collection  of  his  debt. 

302 


FOURTH  CIRCUIT,  NOVEMBER,  1S43.         327 

Burpee  v.  Smith. 

The  value  of  the  property  should  he  stated.  The  defeudant 
might  have  lands  in  a  dozen  different  counties,  the  whole  of 
which  would  not  be  more  than  sufficient  to  pay  the  debt.  Tliis 
Court  would  not,  in  such  a  case,  require  plaintiff,  beibre  filini^ 
a  bill,  to  take  out  a  dozen  successive  executions,  which  would 
take  six  years,  allowing  a  term  for  each  execution;  and,  by  c)ur 
existing  laws,  no  tw^o  of  the  executions  could  be  in  the  hands 
of  different  officers  at  the  same  time.     Laws  1839,  p.  24,  §  0. 

Plea  overruled,  and  reference  to  a  Master  to  appoint  a  receiver. 


*Nehemiah   S.  Buepee  v.   Ira  Smith,    Levi  ['•'327] 
Trowbridge,  John  Van  Tine,  Jas.  G.  Hor- 
TON,  AND  Daniel  Harding. 

It  is  well  settled  that  a  Court  of  Chancoiy  will  reliovo  asrainst  a  judofment  at 
law,  where  complainant  was  prevented  from  making  his  defense  at  law  by 
the  fraudulent  conduct  of  the  defendant.^ 

Where  a  defendant  demurs  to  discovery  and  relief,  when  he  should  have  de- 
murred to  discovery  only,  his  demurrer  will  be  oven-uled.'^ 

Where  one  of  several  defendants  demui-s  to  discovery  on  the  ground  that  it 
would  subject  him  to  a  criminal  prosecution,  his  demurrer  should  be  con- 
fined to  such  parts  of  the  bill  as  tend  to  implicate  him  in  the  supposed  crime. 

Where  complainant  had  signed  a  joint  and  several  note  with  H.  and  was  sued 
alone,  and  had  judgment  rendered  against  him  on  the  note  at  law,  hclt/, 
that  he  need  not  make  H.  a  party  to  a  suit  in  this  Court  to  ro-jtrain  pro- 
ceedings on  the  judgment  at  law.* 

A  magistrate  before  whom  a  judgment  was  rendered  is  not  a  proper  party 
defendant  to  a  suit  brought  in  Chancery  to  restrain  proceedings  on  it. 

Courts  of  equity  restrain  proceedings  at  law.  when  necessaiy  to  the  attain- 
ment of  justice,  not  by  assuming  jurisdiction  over  the  Courts  in  which  the 
proceedings  are  pending,  but  by  controlling  the  parti'  s  to  such  proceedings 
by  injunction. 

»See  Mack  r.  Doty,  Harr.  Ch.,  366;  Miller  r.  ]\Ioi-se,  23  Mich.,  365. 

»See  Williams  r.  Hubbard,  ante,  28. 

^  See  IngereoU  r.  Kirby,  ante,  65  and  note. 

303 


32S  CASES  m  CHANCERY. 

Burpee  r.  Smith. 

Where  an  officer  has  an  execution  in  his  hands,  still  in  force,  he  is  a  necessary 
party  to  a  bill  which  seeks  to  restrain  proceedings  upon  the  judgment  on 
which  it  was  issued. 

This  was  a  hearing  on  demurrer  to  a  bill  seeking  relief  against 
a  judgment  obtained  before  a  justice  of  tbe  peace. 

Trowbridge,  one  of  the  defendants,  obtained  a  judgment 
against  cemplainant  before  a  justice,  on  a  joint  and  several  note 
for  $100,  of  complainant  and  one  Hutchins,  dated  March  1st, 
1838,  and  payable  to  Smith  or  order,  six  months  after,  date. 
The  bill  stated  that  Smith  charged  Hutchins  with  feloniously 
taking  his  property,  and  that  the  note  was  given  to  settle 
[*328]  the  matter  between  them, —  ^complainant  signing  it  as 
surety  for  Hutchins;  and  that,  after  it  became  dne.  Smith 
transferred  it  to  Trowbridge,  who  sued  it  in  his  own  name  for 
Smith's  benefit.  The  other  facts  stated  in  the  bill,  sufficiently 
appear  in  the  opinion  of  the  Court,  All  of  the  defendants 
except  Harding,  against  whom  the  bill  was  taken  as  confessed, 
demurred  to  the  discovery  and  relief. 

//.  T.  Backns,  in  support  of  the  demurrer. 

A.  H.  Hanscom^  contra. 

The  Chancelloe.  One  ground  of  demurrer  is,  that  com- 
])lainant  had  a  good  defense  at  law,  and  should  have  availed 
liimself  of  it  before  the  justice.  When  the  summons  was 
served,  he  did  not  know  Trowbridge  was  the  holder  of  the  note. 
Trowbridge  held  a  note  against  liim  of  about  eleven  dollars,  a 
part  of  which  had  been  paid  some  three  or  four  weeks  before, 
and  complainant  thought  he  was  sued  for  the  balance  due  on 
that  note.  He  had  never  been  called  on  to  j)ay  the  Smith  note 
by  either  Trowbridge  or  Smith;  and  the  suit  being  against  him 
alone,  there  was  nothing  in  the  summons  to  put  him  on  his 
guard.  To  keep  him  in  ignorance  of  the  true  character  of  the 
suit,  as  it  would  seem,  Trowbridge  sent  a  man  to  him  on  the 
evening  of  the  day  preceding  the  return  of  the  summons,  with 
a  falsehood  in  his  mouth,  to  inform  him  that  judgment  had  on 
that  day  been  obtained  against  him  and  that  he  need  not  be  at 
304 


FOURTH  CirwCUIT,  NOVEMBER,  1S43.         329 

Burpee  v.  Smith. 

the  trouble  of  attending  court.  Sucli  are  tlie  statements  of  the 
bill;  and,  if  true,  as  they  must  be  taken  to  be  for  the  purpose 
of  disposing  of  the  demurrer,  they  show  complainant  lost  his 
defense,  not  by  neglect,  but  through  the  unM'arrantable,  if  not 
fraudulent  conduct  of  Trowbridge,  by  which  lie  was  lulled  into 
security.  It  is  hardly  necessary  to  say,  that  this  Court 
will  give  relief  in  *such  circumstances.  Complainant  [*329] 
did  not  learn  judgment  had  been  obtained  on  the  Smith 
note,  until  it  was  too  late  to  appeal. 

Another  ground  of  demurrer  is,  that  the  bill  shows  the  note 
was  given  to  compound  a  felony  ;  and  that  equity  will  not 
compel  a  defendant  to  discover  on  oath  a  fact,  which,  if  true, 
will  subject  him  to  a  criminal  prosecution.  This  objection 
can  apply  to  Smith  only  ;  and  he,  to  have  availed  himself  of  it 
in  this  way,  should  have  demurred  to  the  discovery  only,  and 
not  to  both  discovery  and  relief ;  for  although  complainant 
may  not  be  entitled  to  a  discovery  of  the  \vliole  ease  from 
Smith,  yet,  he  will  be  entitled  to  relief  against  him,  if  he  can 
make  out  his  case  by  other  evidence.  The  demurrer  should 
also  have  been  limited  to  such  parts  of  the  bill  as  implicate 
Smith  in  the  supposed  crime.     Edwards  v.  Ilidhert^  ante  54. 

The  next  objection  is  that  Hutchins  is  not  a  party.  Com- 
plainant signed  the  note  as  surety  for  Hutchins.  It  is  the 
several  note  of  each  as  well  as  the  joint  note  of  both  ;  and  the 
judgment  is  against  complainant  only.  I  therefore  see  no 
reason  for  making  Hutchins  a  party.  If  sued  on  the  note,  he 
can  make  his  defense  at  law,  and  he  may,  or  he  may  not  choose 
to  avail  himself  of  it.  This  Court  cannot  control  him  in  that 
respect.  As  Trowbridge  sued  complainant  alone,  he  cannot 
object  that  Hutchins  is  not  a  party  to  the  present  suit;  because 
he  might  have  made  him  a  party  to  the  judgment,  but  did  not. 

The  judgment  was  obtained  before  Horton,  but  that  is  no 
reason  for  making  him  a  party.  He  could  take  no  step  in  the 
cause  before  him,  unless  it  was  moved  by  one  or  other  of  the  par- 
ties. It  was  not  necessar}',  therefore,  that  he  should  be  a  party 
to  insure  an  observance  of  the  injunction.  Courts  of  ecpiity 
restrain  proceedings  at  law,  when  necessary  to  the  attain- 
YoL.  I.— 20  305 


J30  CASES  IN  CIIAXCERT. 


Johnson  v.  Jolinson. 


p330]  ment  of  justice,  not  by  assuming  *jurisdiction  over  the 
Court  in  wliich  the  proceedings  are  pending,  but,  by 
controlling  the  parties  to  such  proceedings,  by  injunction. 

Yan  Tine,  the  officer,  stands  on  different  ground.  It  is 
fairly  to  be  inferred  from  the  bill,  although  it  is  not  in  express 
terms  alleged,  that  the  execution  was  still  in  his  hands,  in  full 
force,  when  the  bill  was  filed.  It  was  necessary  to  make  him 
a  party  that  the  injunction  might  extend  to  him.  Fellows  v. 
Felloius,  4  J.  C.  R.  25. 

Demurrer  allowed,  and  bill  dismissed,  as  to  Horton,  and 
overruled  as  to  the  other  defendants. 


[*331]  *WiLLiAM  T.  Johnson  v.  Horace  Johnson  and 
John  Pkickett. 

The  vendee  of  an  equity  of  redemption  stands  in  the  place  of  the  mortgagor 
and  holds  the  property  subject  to  all  incumbrances;  and  where  there  were 
two  mortgages,  and  the  mortgaged  premises  had  been  sold  by  foreclosure, 
at  law,  on  the  first  mortgage,  on  the  payment  of  the  redemption  money 
by  such  vendee,  and  the  assignment  to  him  by  the  purchaser  at  the  mort- 
gage sale  of  all  the  interest  of  the  latter  in  the  land,  it  was  held,  that 
such  vendee  could  not  claim  the  rights  of  the  purchaser  at  the  sale,  for 
the  purpose  of  defeating  the  second  mortgage. 

When  a  subsequent  mortgagee  pays  the  redemption  money  of  the  mortgaged 
premises  to  the  purchaser  under  the  foreclosure  of  a  prior  mortgage,  he 
does  not  succeed  to  the  rights  of  such  purchaser,  but  stands  in  the  place 
of  the  prior  mortgagee,  the  only  additional  right  which  he  acquires  being 
the  right  to  be  reimbursed  what  he  has  paid,  with  interest,  on  foreclosing 
his  own  mortgage. 

When  a  mortgagor  redeems,  it  should  always  be  construed  as  a  payment,  he 
being  personally  liable  for  the  debt.  But  when  his  vendee  redeems,  who 
is  not  personally  liable,  and  there  is  an  intervening  mortgage  between  the 
one  redeemed  by  him  and  his  equity  of  redemption,  the  same  rule  shouhf 
prevail  as  in  case  of  a  redemption  by  a  subsequent  mortgagee.^ 

This  was  a  bill  to  foreclose  a  mortgage. 


*  See  Webb  v.  Williams,  post,  544. 
306 


FOUETIl  CIRCUIT,  NOVEMBER,  18^3.         332 

Johnson  v.  Johnson. 

The  defendant,  Horace  Johnson,  on  the  fourth  day  of  Feb- 
ruary, 1S37,  mortgaged  the  premises  to  Daniel  Windiate,  and, 
on  the  18th  day  of  October  following,  he  mortgaged  them  to 
complainant.  On  the  3d  day  of  Marcli,  1838,  Windiate  fore- 
closed his  mortgage  under  the  statute,  and  the  two  years'  re- 
demption expired  March  3,  1840.  (Laws  1833,  p.  283.)  May 
23d,  1838,  Horace  Johnson  sold  the  premises  by  quit  claim 
deed  to  Alphonso  B.  Newcomb,  and,  after  passing  through  the 
hands  of  several  persons,  they  were  purchased  by  Prickett  of 
one  Burgess,  August  12,  1839,  subject  to  "Windiate's  mortgage. 
Prickett,  on  the  same  day,  paid  Windiate,  who  was  the  pur- 
chaser at  the  mortgage  sale,  $790,  the  sum  necessary  to 
^'redeem  the  premises,  and  took  an  assignment  of  all  [*332] 
AVindiate's  right,  title  and  interest  as  purchaser  and 
mortgagee.  The  several  deeds  and  mortgages  were  recorded,  in 
the  order  in  which  they  were  executed. 

-/.  B.  Hunt,  for  complainant. 

J/.  Z.  Drake,  for  defendant  Prickett. 

The  Chancellor.  Prickett  insists  that  he  holds  the  premises 
as  assignee  of  "Windiate's  rights  as  purchaser  under  the  mort- 
gage sale,  and  not  as  purchaser  of  the  equity  of  redemption 
from  Burgess.  If  this  view  of  the  case  be  correct,  then,  the 
mortgaged  premises  not  having  been  redeemed  within  the  two 
years  allowed  by  the  statute,  complainant's  equity  of  redemp- 
tion, as  subsequent  mortgagee,  is  barred.  The  statute  is  ex- 
plicit on  this  point.  It  declares  the  conveyance  to  the  pur- 
chaser, when  the  premises  have  not  been  redeemed,  shall  be  an 
entire  bar  of  all  claim  or  equity  of  redemption  of  the  mort- 
gagor, his  heirs  and  representatives,  and  of  all  persons  claiming 
under  him  or  them,  by  virtue  of  any  title  subsequent  to  sucli 
mortgage.     Sec.  16. 

With  regard  to  redemption,  tlie  eleventh  section  savs:  "It 
shall  be  lawful  for  the  mortgagor,  his  heirs,  executors,  adminis- 
trators, or  assigns,  whose  lands  or  tenements  shall  be  sold  in 

307 


333  CASES  m  CHANCEEY. 

Johnson  v.  Johnson. 

conformity  with  tlie  provisions  of  this  act,  within  two  years 
from  and  after  such  sale,  to  redeem  such  lands  or  tenements,  by 
paying  to  the  purchaser  or  purchasers,  his  or  their  executors, 
administrators  or  assigns,  or  to  the  proper  sheriff,  under  sherift", 
or  deputy  sheriff,  the  sum  of  money  which  may  have  been  paid 
by  such  purchaser  or  purchasers,  together  with  interest  on  such 
purchase  money,  at  the  rate  of  ten  per  centum  per  annum, 
from  the  time  of  such  sale;  and  such  payment  being 
[*333]  made  *as  aforesaid,  the  said  sale,  and  the  certificate 
granted  thereon  as  aforesaid,  shall  be  null  and  void." 

The  word  assig?is  in  this  section  does  not  mean  subsequent 
mortgagees,  but  subsequent  purchasers.  This  will  appear 
when  I  come  to  speak  of  the  right  of  subsequent  mortgagees  to 
redeem. 

The  mortgagor  and  his  assigns,  may  redeem  the  mortgaged 
premises  at  any  time  within  two  years,  by  paying  to  the  pur- 
chaser, or  officer  who  sold  the  premises,  the  sum  for  which 
they  were  sold,  with  ten  per  cent,  interest.  On  such  payment 
being  made,  the  sale,  and  certificate  granted  thereon,  become 
null  and  void.  Such  are  the  rights  of  the  mortgagor  and  his 
vendee  under  the  statute.  Tliey  are  placed  on  the  same  foot- 
ing. The  subsequent  vendee  is  regarded  by  the  statute  as  the 
successor  of  the  mortgagor,  and  in  no  other  light.  Now,  had 
Johnson,  the  mortgagor,  instead  of  Prickett,  paid  Wiudiate, 
and  taken  the  assignment  from  him,  it  would  have  been  a 
redemption  or  payment  of  the  Windiate  mortgage;  and  is 
payment  by  Prickett,  and  an  assignment  to  him,  standing  in 
the  place  of  the  mortgagor,  to  be  regarded  in  any  other  light  ? 
Can  a  grantee  succeed  to  greater  rights  than  his  grantor  had, 
when  there  is  no  fraud  or  concealment  on  the  part  of  those 
claiming  under,  or  in  opposition  to,  his  grantor,  and  where 
the  grantee  knew,  or  was  bound  to  know,  of  the  existence  of 
such  claims,  when  he  purchased  ?  It  is  immaterial  whether 
Prickett  had  actual  notice  of  complainant's  mortgage,  or  not. 
It  was  duly  recorded,  and  he  was  bound  to  take  notice  of  it. 

The  seventeenth  section  of  the  act  relates  to  redemption  by 
subsequent  mortgagees.     It  is  in  these  words  :     "  Any  person 

308 


FOUPtTII  CIRCUIT,  NOVEMBER,  1843.         334 

Johnson  v.  Johnson. 

to  wliom  a  subsequent  mortgage  Tiiay  liave  been  executed,  shall 
be  entitled  to  the  same  privilege  of  redemption  of  the 
mortgaged  premises  that  the  mortgagor  *might  have  [*334] 
had,  or  of  satisfying  the  prior  mortgage,  and  shall  by 
such  satisfaction  acquire  all  the  benefits  to  which  such  prior 
mortgage  Nvas  or  might  have  been  entitled."  This  section,  by 
securing  to  subsequent  mortgagees  the  right  of  redemption, 
shows  that  the  word  assigns,  in  the  eleventh  section,  was  not 
intended  to  extend  to  them,  but  to  subsequent  vendees  only. 
It  is  the  duty  of  the  mortgagor,  or  his  vendee,  who  claims  to  be 
the  owner  of  the  land  in  fact,  to  pay  oif  all  incumbrances.  Hence 
the  statute,  while  it  provides  that  a  sul^seqnent  mortgagee,  who 
redeems,  shall  acquire  all  the  rights  of  the  prior  mortgage, 
makes  no  such  provision  in  favor  of  a  subsequent  vendee,  who 
is  supposed  to  redeem  for  the  purpose  of  discharging  his  estate 
of  the  incumbrance.  Again,  the  subsequent  mortgagee  does 
not  take  the  place  of  the  purchaser  at  the  mortgage  sale.  He 
succeeds  to  the  rights  of  the  prior  mortgage,  not  of  the  jm?'- 
chaser.  Had  it  been  the  intention  of  the  statute  to  substitute 
him  for  the  purchaser,  it  w'ould  have  done  so  in  express  terms ; 
and,  where  there  were  a  number  of  mortgages,  it  would  have 
provided  for  the  several  mortgagees'  redeeming  of  each  other. 
If  complainant,  then,  had  redeemed  instead  of  Prickett,  the 
only  right  he  would  have  acquired  would  have  been,  to  be 
reimbursed  what  he  had  paid,  with  interest,  on  foreclosing  his 
own  mortgage  ;  and  Prickett  cannot  stand  on  more  favorable 
ground  than  complainant  would  have  stood  upon,  had  he 
redeemed. 

The  assignment  does  not  alter  the  nature  of  the  transac- 
tion; it  cannot  make  that  a  purchase  wdiicli  was,  in  fact,  a  re- 
demption. If  Windiate  had  purchased  of  Burgess,  the  result 
would  have  been  the  same.  lie  could  not,  at  the  same  time, 
claim  the  rights,  both  of  purchaser  under  the  sale  and  grantee 
of  the  equity  of  redemption.  As  grantee  of  the  mort- 
gagor, he  could  have  the  land  only  after  *payment  of  the  [*335] 
incumbrances;  and,  having  of  his  own  accord,  taken 
upon  himself  that  character,  he  must  take  it  with  all  its  con- 

300 


335  CASES  IN  CHANCEKY. 

Johnson  v.  Johnson. 

sequences.  He  could  not  change  from  one  to  the  other  to  suit 
circumstances,  as  interest  might  dictate, — for  one  purpose  hold- 
ing himself  out  as  grantee  of  the  mortgagor,  and  for  another 
as  purchaser  under  the  mortgage  sale, — saying  to  complainant, 
if  he  had  come  to  redeem,  that  as  grantee  of  the  mortgagor, 
he  himself  had  a  right  to  redeem,  or,  if  complainant,  knowing 
that  fact,  had  neglected  to  redeem,  that  he  was  the  purchaser  at 
the  mortgage  sale,  and  the  premises  had  not  been  redeemed. 
The  statute  treats  a  redemption  by  the  mortgagor,  or  his  as- 
signs, as  payment.  It  should  always  be  so  construed  when  the 
mortgagor  redeems,  he  being  personally  liable  for  the  debt. 
But,  when  his  vendee  redeems,  who  is  not  personally  liable  for 
the  mortgage  debt,,  and  there  is  an  intervening  mortgage  be- 
tween the  one  redeemed  by  him  and  his  equity  of  redemption, 
the  same  rule  should  prevail  as  in  case  of  redemption  by  a 
subsequent  mortgagee.  He  should  not  lose  what  he  has  paid, 
because  he  cannot  pay  the  intervening  mortgage. 

There  must  be  a  reference  to  a  Master  to  compute  the 
amount  due  on  complainant's  mortgage,  and,  on  the  coming  in 
of  his  report,  a  decree  must  be  entered  that  Prickett  redeem  in 
six  months,  or  that  the  mortgaged  premises  be  sold,  and 
Prickett  be  first  paid  the  $790  paid  by  him  to  Windiate,  but 
without  interest,  as  he  has  been  in  possession,  and  then  com- 
plainant must  be  paid  what  is  due  him,  and  his  •  costs,  and  the 
balance,  if  any,  to  Prickett. 


310 


SECOND  CIliCUIT,  JANUARY,  1S44.  33(: 

Benedict  v.  Denton. 


*Lewis  Benedict  v.  Samuel  Denton  and  Se-  [=='336] 
LAH  B.  Collins. 

The  declarations  of  an  agent,  made  at  the  time  of  doing  an  act  within  the 
scope  of  his  authority,  and  relating  to  the  subject  matter  of  the  act,  are 
evidence,  as  a  part  of  the  re.s-  gestw;  but  statements  subsequently  made  by 
him  are  not,  because  the  latter  are  made  without  authority,  and,  for  that 
reason,  stand  on  the  same  footing  with  the  declarations  of  another  per- 
son. ^ 

The  seal  of  a  corporation  is,  itself,  j}rima  facie  evidence  that  it  was  affixed  by 
proper  authority,  and  the  contrary  must  be  shown  by  the  objecting  party. 

Tins  was  a  bill  to  foreclose  a  mortgai^e.  The  facts  suffi- 
ciently appear  in  the  opinion  of  the  Court. 

J.  Kingsley,  for  complainant. 

0.  TlaioMns,  for  defendant. 

The  Chancellor.  The  answer,  which  is  not  under  oath, 
sets  up  payment.  The  mortgage  bears  date  November  10th, 
1837,  and  was  given  by  Denton  to  the  Bank  of  Washtenaw,  to 
secure  the  payment  to  the  bank  of  his  note  of  the  same  date, 
for  $1,108.32,  payable  three  months  after  date,  with  interest. 
The  note  and  mortgage,  after  they  became  due,  were  assigned 
by  the  bank,  under  its  corporate  seal,  to  complainant  The 
answer  states  that  the  note  and  mortgage  were  given  to  secure 
the  payment  of  two  drafts,  drawn  by  N.  J.  Brown,  on  Denton, 
to  pay  his  share  of  certain  notes  given  by  Brown,  Denton,  and 

^See  Homer  v.  Fellows,  1  Doug.,  51;  Converse  v.  Blumi-ich,  14  Mich.,  109; 
Sisson  V.  Cleveland  k  Toledo  R.  R.  Co.,  id.,  489;  Hammond  v.  Jlich.  State 
Bank,  anie,  214. 

But  the  acts  and  declarations  of  one  assuming  to  act  as  agent  for  another 
are  not  evidence  a-s  against  the  alleged  principal  till  the  fact  of  agency  is  es- 
tablished by  other  evidence.  Hatch  r.  Squier,  11  Mich.,  185.  See,  also,  Grover 
&  B.  Sewing  Machine  Co.  r.  Polhemus,  ;M  id.,  247;  Kornemann  r.  Monaglum, 
24  id.,  36;  Brighton  v.  Peters,  1  Gray,  139;  Chicago  &  Great  Eastehi  R.  R. 
Co.  V.  Fox.  41  111.,  100;  Rawson  r.  Curtiss,  19  id.,  456,  474;  Maxey  v.  Hecke- 
thorne,  44  id.,  437. 

311 


337  CASES  IX  CHANCERY. 

Benedict  r.  Denton. 

Charles  H.  Yan  Dorn,  for  real  estate  purchased  by  them  in 
Wisconsin.  That  the  drafts  were  sent  by  Brown,  (who  then 
resided  at  Chicago,)  to  E.  S.  Cobb,  cashier  of  the  Bank  of 
Washtenaw,  and  were  made  payable   at  the  bank;  and  that, 

subsequently,  Yan  Dorn  paid  the  notes  of  Brown, 
[*337]  *Denton,  and  Yan  Dorn.     To  prove  these  facts  we  have 

the  depositions  of  several  witnesses; — some  of  them  tes- 
tifying to  the  declarations  of  Cobb,  who  is  dead.  These  declara- 
tions of  the  cashier  are  objected  to  as  evidence  in  the  case,  and 
must,  I  think,  be  excluded  from  the  consideration  of  the  Court. 
The  declarations  of  an  agent,  made  at  the  time  of  doing  an  act, 
within  the  scope  of  his  authority,  and  relating  to  the  subject 
matter  of  the  act,  are  evidence  as  a  part  of  the  res  gestce/  but 
statements  subsequently  made  by  him  are  not,  because  the 
latter  are  made  without  authority,  and,  for  that  reason, 
stand  on  the  same  footing  with  the  declarations  of  any  other 
person.  Cobb,  it  may  be  said,  was  the  general  agent  of  the 
bank;  that,  as  cashier,  it  was  his  duty  to  receive  and  pay  out 
moneys  for  the  corporation,  and  consequently  to  receive  the 
amount  due  upon  the  mortgage,  and  that,  therefore,  any  admis- 
sion made  by  him  as  cashier,  and  while  in  the  actual  perform- 
ance of  his  official  duties,  should  be  received  as  evidence.  It  is 
unnecessary  to  decide  this  point,  as  the  facts  testified  to  do  not 
present  it.  There  is  no  evidence  that  Cobb  ever  did  admit  the 
note  and  mortgage  were  paid.  The  conversations  testified  to 
by  Brown,  had  nothing  to  do  with  the  business  of  the  bank, 
but  related  to  Cobb's  private  affairs.  They  are,  therefore, 
clearly  inadmissible.  If  they  were  to  be  received  as  evidence, 
they  would  by  no  means  establish,  to  my  satisfaction,  the  pay- 
ment of  the  note  and  mortgage.  Waiving  all  objection  to  the 
testimony,  it  seems  to  me  too  vague  and  indefinite,  to  prove 
a  payment  of  the  note  and  mortgage.  It  is  by  no  means  so 
full  and  clear  as  it  should  be  for  that  purpose. 

It  is  said  the  cashier  had  no  authority  to  transfer  the  note 

and  mortgage.     The  common  seal  of  the  corporation  is  affixed 

to  the  assignment,  and  the  seal  itself  is  prima  facie  evi- 

[*338]  dence  that  it  was  affixed  by  proper  authority;  and  *the 

312 


FIRST  CIRCUIT,  JANUARY,  1844.  339 

Gould  v,  Ti-yon. 

contrary  must  be  shown  by  tlie  objecting  party.  Ang. 
&  Ames  on  Corp.  115.  Corporations  act  by  their  common 
seal;  and  it  is  not  to  be  presumed  that  the  officer  liaving charge 
of  it  has  affixed  it  to  an  instrument,  M-itliout  authority.  The 
j)resumption  is  that  he  had  authority,  until  the  contrary  is 
shown. 

I  am  of  opinion  that  the  production  of  the  corporation  books 
could  have  been  compelled  on  a  subpoana  duces  tecum.  The 
corporation  is  not  a  party  to  the  suit,  and,  by  the  production 
of  its  books,  would  not  be  furnishing  evidence  against  itself, 
in  any  other  sense  than  as  an  assignor  of  a  chose  in  action, 
who,  not  being  a  party  to  the  suit,  would  be  a  good  witness  for 
defendant. 

Reference  to  Master  to  comjiute  amount  due. 


*WiLLiAM  Gould  et  al.  v.  Charles  Tryon.     [*339] 

The  service  of  a  subpoena  was  set  aside  as  irregular,  where  the  copy  delivered 
to  the  defendant  varied  fi'om  the  original,  in  being  tested  on  the  31st  day 
of  October,  1840,  instead  of  1843. 

This  was  a  motion  to  set  aside  the  service  of  a  subpoena  as 
irregular. 

Tlie  subpoena  in  this  case  was  tested  on  the  31st  day  of  Octo- 
ber, 1843,  and  the  copy  served  on  the  defendant  varied  from  the 
original,  being  tested  on  the  31st  day  of  October,  1840. 

J.  S.  Ahhotty  in  support  of  the  motion. 

E.  B.  Harrington,  contra. 

The  Chancellor  set  aside  the  service  of  the  subpoena  as 
irregular,  and  cited  1  Edw.  Ch.  R.  G31. 


313 


340  CASES  m  CHANCEEY. 


Rood  V.  Winslow. 


[*340]  *Eeeves  v.  Scully. 

Rules  of  practice  regulating  the  mode  of  applying  for  re- taxation  of  costs,  and 
for  setting  aside  the  taxation  for  irregularity. 

The  Chancellok.  Where  a  party  applies  for  a  re- taxation 
of  costs,  he  must  bring  the  question  before  the  Court  by  peti- 
tion or  motion,  specifying  the  items  objected  to  as  erroneously 
allowed  by  the  taxing  master.  Or  if  there  was  irregularity  in 
the  taxation, — as  the  want  of  notice,  or  the  like, — he  must  make 
a  motion  to  have  the  taxation  set  aside  on  that  account. 


Heney  W.  Eood  v.  Erasmus  W.  Winslow,  John  F. 
Porter  and  Joseph  G.  Ames. 

Where  A.  was  pardoned,  on  condition  he  should  secure  the  payment  of  a  fine 
of  $1,000  to  the  county,  and  the  county  commissioners  took  a  mortgage  to 
themselves  instead  of  the  county,  the  mortgage  was  held  to  be  good,  and 
the  commissioners  were  declared  trustees  for  the  county,  the  law  implying 
a  trust  from  the  nature  of  the  transaction. 

Where,  in  a  conditional  pardon,  the  person  pardoned  was  ordered  to  secure  the 
payment  of  $1,000  to  the  county,  and  the  county  commissioners  obtained  a 
mortgage  for  $1,150,  the  mortgage  was  held  good  for  the  $1,000,  and  void 
as  to  the  residue.^ 

Bill  to  restrain  a  statutory  foreclosure,  and  have  the  mort- 
gage given  up  and  canceled. 

At  the  November  term  of  the  Circuit  Court,  for  the  county 

of  Berrien,  for  1838,  one  Shurte  was  convicted  on  three 

[*341]  several  indictments  for  larceny,  and  sentenced,  on  *two 

of  them,  to  pay  a  fine  of  $500  each,  and  the  costs  of 

1  Affirmed  in  2  Doug.,  68.    See  the  subject  of  duress  considered  in  Ewell's 
Lead.  Cases,  760.,  et  seq. 

3M 


TIIIIID  CIRCUIT,  JAJsUARY,  1844.  342 

Rood  V.  Winslow. 

prosecution,  and  on  the  otlier  to  a  year's  imprisonment  and 
costs.  February  9tli,  1839,  Sliurte  was  pardoned  on  condition 
tliat  he  sliould  secure  to  the  county  the  fine  of  $1,000.  Tlie 
pardon  made  no  mention  of  the  costs,  but  required  him  to  be 
set  at  liberty,  "  on  securing  the  payment  of  the  $1,000." 
Shurte  and  wife,  on  the  18th  day  of  May,  1839,  executed  a 
mortgage  to  the  defendants,  "  Erasmus  Winslow,  John  F.  Por- 
ter, and  Joseph  G.  Ames,  and  their  successors  in  office,  com- 
missioners of  the  county  of  Berrien  aforesaid,  of  the  second 
part,"  for  the  payment  of  $1,150  and  interest,  on  the  8th  day 
of  November  following; — the  $150  being  added  for  the  costs 
of  the  three  prosecutions.  The  common  blank  form  was  used, 
in  drawing  up  the  mortgage,  which  did  not  refer  to  the  official 
capacity  of  the  defendants,  except  as  above  stated.  December 
16th,  1839,  Shurte  and  wife  conveyed  the  premises  to  Herman 
Itood,  who,  January  24th,  1840,  conveyed  to  complainant. 
Both  conveyances  contained  covenants  of  seizin  and  warranty, 
and  neither  made  mention  of  the  mortgage;  and  the  deeds  and 
mortgages  were  recorded  in  the  order  in  which  they  were  exe- 
cuted. The  money  not  being  paid  at  the  time,  defendant  pro- 
ceeded to  foreclose  the  mortgage  by  advertisement  and  sale  un- 
der the  statute,  when  complainant  filed  his  bill  to  have  the 
mortgage  delivered  up  and  canceled,  and  obtained  an  injunction 
to  restrain  the  sale. 

C.  Z>a7ia,  for  complainant. 

J.  S..  Chipman^  for  defendants. 

The  Chancellor.  It  is  insisted  that  the  mortgage  should 
have  been  taken  in  the  name  of  the  county,  and  not  in 
the  name  of  the  defendants,  as  commissioners,  and  *that  [*342] 
it  is  therefore  void.  The  first  part  of  the  proposition  is 
true,  but  the  conclusion  drawn  from  it,  is  erroneous.  Every 
organized  county  is  a  body  politic  and  corporate,  and,  in  its 
corporate  capacity,  may  sue  and  be  sued;  purchase  and  hold 
land  and  personal  estate,  for  the  use  of  the  county;  l)orn)w 
money,  for  the  purpose  of  erecting  and  repairing  county  build- 

315 


343  CASES  ll\   CIIAXCERY. 

Rood  V.  Winslow. 

ings,  building  bridges,  and  completing  and  repairing  roads,  as 
provided  bj  law;  and  may  make  all  necessary  contracts,  and  do 
all  other  necessary  acts  in  relation  to  the  property  and  concerns 
of  the  county.  E..  S.  33,  §  3.  The  commissioners  of  each 
county,  by  the  law  creating  the  office,  which  law  is  now  re- 
pealed, were  constituted  a  board  for  the  transaction  of  county 
business.  E..  S.  39.  All  official  business  done  by  them  should 
have  been  done  in  the  name  of  the  county,  and  not  in  their  in- 
dividual names.  They  were  the  servants  or  agents  of  the  body 
politic,  and  their  acts  were  its  acts.  The  mortgage,  therefore, 
should  have  been  taken  in  the  name  of  the  county;  but  it  is 
not  void  for  the  reason  it  was  not  so  taken.  In  Jackson  v.  Ca- 
reij,  8  J.  E.  385,  the  deed  was  void  for  the  want  of  a  grantee 
capable  of  taking  under  the  grant.  The  deed  was  made  to 
"  the  people  of  the  county  of  Otsego,"  who  were  not  a  corpo- 
ration, and  the  Court  in  the  case,  say:  "A  grant,  to  be  valid, 
must  be  to  a  corporation,  or  some  person  certain  must  be  named, 
who  can  take  by  force  of  the  grant,  and  who  can  hold,  either  in 
his  own  right  or  as  a  trustee."  This  was  also  the  case  in  Horn- 
bech  V.  Westhrooh,  9  J.  E.  73.  In  the  ]3i"esent  case,  there  are 
no  less  than  three  grantees  named  in  the  mortgage,  each  of 
whom  is  capable  of  taking  under  the  grant.  It  is  not  necessa- 
ry to  decide  what  eifect,  (if  any)  the  w^ords,  "and  their  succes- 
sors in  office,  commissioners  of  the  count}'  of  Berrien,"  have 

upon  the  grant;  whether  they  are  to  be  regarded  as  de- 
[*3'i3]  scriptive  ^of  the  persons  of  the  grantees  only,  or  as 

indicative  of  the  interest  they  were  to  take,  and  creating 
them  trustees  for  the  county.  That  they  are  such  trustees, 
there  is  no  doubt.  They  admit  it  in  their  answer;  and,  with- 
out such  admission,  the  law  would  imply  a  trust  from  the  facts 
in  the  case,  they  having,  as  agents  of  the  county,  taken  a  secu- 
rity in  their  own  names,  which  they  should  have  taken  in  the 
name  of  the  county. 

The  mortgage  should  have  been  for  the  $1,000  only.  The 
pardon  did  not  require  the  costs  to  be  paid  by  Shurte.  Defend- 
ants were  therefore  wrong  in  requiring  him  to  give  security  for 
them ;  and  to  that  extent,  the  mortgage  is  void.     They  were 

316 


THIRD  CIRCUIT.  JAXUAET,  1844.  344 


Cavcnaugh  v.  Jakeway. 


not  intended  as  a  gratuity  to  the  county,  but  exacted  as  a  right, 
under  tlie  pardon,  and  consented  to  by  Shnrte  to  obtain  his  lib- 
erty; and  complainant,  having  succeeded  to  the  rights  of  Shurte 
in  the  mortgaged  premises,  is  entitled  to  have  them  deducted 
from  the  mortgage. 

The  mortgage  must  be  declared  good  for  the  $1,000,  and 
void  for  all  over  that  amount;  and  complainant  must  pay  the 
$1,000  with  interest,  from  the  date  of  the  mortgage,  and  de- 
fendants' costs,  in  six  months.  In  default  thereof,  the  bill  must 
be  dismissed  with  costs. 


^Lawrence  Cavenaugh  v.  Elmore  Jakeway  ['-'344] 
AND  Ebenezer  Jakeway. 

Irregularities  in  a  sale,  under  an  execution,  must  be  corrected  by  applying  to 
the  Court  out  of  which  the  writ  issued,  to  set  the  sale  aside.  There  must 
be  fraud  to  give  this  Court  jurisdiction;  irregularity  is  not  sufficient.' 

Demueeee  to  a  bill  to  set  aside  a  sale  on  execution. 

A  judgment  was  recovered  in  the  Circuit  Court  for  the  connty 
of  Berrien,  in  April,  1840,  by  Jehiel  Enos,  against  complain- 
ant, as  principal,  and  one  Johnson  as  surety,  for  $58.91  and 
costs  of  suit,  and  execution  issued  upon  it  to  the  sheriff,  for 
$117.82,  and  levied  upon  the  west  half  of  the  northwest  quar- 
ter of  section  thirteen,  town  four  south,  of  range  eighteen  west, 
and  the  north  half  of  the  northwest  quarter  of  section  twenty- 
four,  of  the  same  town  and  range,  belonging  to  complainant. 
On  the  20  th  day  of  July,  1840,  the  sheriff  sold  the  two  lots 
together,  instead  of  separately  as  the  statute  requires,  R.  S. 


'See  Blair  r.  Compton,  33  Mich.,  422;  Campau  r.  Godfrey,  18  id.,  44;  Koss 
V.  Mead,  5  Gilm.,  171;  Prather  v.  Hill,  36  111.,  402;  Gillespie  v.  Smith.  29  id., 
481;  Fergus  v.  WooJworth,  44  id.,  374;  McMuUcn  r.  Goble,  47  id.,  67;  Hay 
r.  Baugh,  77  id.,  500;  Roberts  r.  Flcining,  53  id.,  196;  Winchell  r.  Edwards, 
57  id.,  41;  Osgood  r.  Blackraore,  ■■>9  id.,  261;  Rigney  v.  Small,  GO  id.,  416. 

317 


345  CASES  IX  CHANCEEY. 

Cavenaugh  v.  Jakeway. 

324,  §  9,  to  the  defendant,  Elmore  Jakeway,  for  $131.40,  and 
gave  him  a  certificate  for  a  deed  in  two  years,  unless  the  lots 
were  redeemed  within  that  time.  Elmore  Jakeway  assigned 
the  certificate  to  Ebenezer  Jakeway,  to  whom  the  sheriflT  deeded 
the  lots,  after  the  expiration  of  the  two  years.  The  bill  stated 
that  the  two  lots  were  worth  $1,500  when  they  were  sold;  that 
either  one  of  them  was  at  that  time  worth  $300;  and  that  com- 
plainant had  been  prevented  from  redeeming  either  one  of 
them,  by  reason  of  their  having  been  sold  together. 

Miller,  in  support  of  the  demurrer. 
I^acon,  contra. 

[*345]  *The  CiiAisrcELLOE.  It  was  clearly  the  duty  of  the 
officer  to  have  sold  the  lots  separately;  and  by  selling 
them  together,  he  has  probably  incurred  the  penalty  given  by 
the  fi.fth  section  of  the  act.  When  several  known  lots,  tracts, 
or  parcels,  are  levied  on,  the  ninth  section  requires  them  to  be 
separately  exposed  for  sale.  This,  however,  is  directory  to  the 
officer  merely,  and  a  non-compliance  on  his  part  will  not  make 
the  sale  void.  The  irregularity  must  be  corrected  by  applying 
to  the  court  out  of  which  the  execution  issued,  to  set  the  sale 
aside.  Whether  the  irregularity  would  affect  a  purchaser,  not  a 
party  to  the  suit,  as  in  the  present  case;  or  whether,  he  being  a 
a  party,  the  Court  would  set  aside  the  sale  after  the  two  years' 
redemption  had  expired,  it  is  not  necessary  for  this  Court  to 
decide;  nor  can  any  sucli  consideration  give  it  jurisdiction, 
where  it  has  none  in  the  first  instance. 

There  must  be  fraud  to  give  this  Court  jurisdiction;  irregu- 
larity is  not  sufficient.  Chancellor  Kent  said  in  Shottenkirk 
V.  WJteeler,  3  J.  C.  R.  280,  that  there  was  no  case  in  which 
equity  had  undertaken  to  question  a  judgment  for  irregularity. 
Every  court  has  power  to  control  its  o^vn  process  in  such  a  way 
as  to  prevent  the  abuse  of  it.  It  has  as  much  power  over  it? 
process,  as  any  other  proceeding  before  it.  Stratford  v. 
Twynam,  1  Jac.  R.  418. 
318 


THIRD  CIRCUIT,  JxVNUARY,  ISU.  340 

Ingerson  r.  Stai-kweather. 

The  bill  does  not  make  out  a  case  of  fraud.  It  alleges  the 
lots  were  worth  $1,500,  when  they  were  sold,  and  that  they  sold 
for  $131.40  only.  If  the  sale  had  been  absolute,  the  great  inad- 
equacy of  price  would  be  a  strong  badge  of  fraud;  but  it  cannot 
be  so  considered,  when  it  is  recollected  complainant  had  two 
years  to  redeem  in,  by  paying  the  131.40,  with  ten  per  cent, 
interest. 

Demurrer  allowed,  and  bill  dismissed  with  costs. 


[*346]  *Cyrus  Ingerson  v.  John  Starkweather  and 

OTHERS. 

An  agent,  whether  of  the  public  or  of  individuals,  who  is  authorized  to  sell 
property  for  the  best  price  that  can  be  obtained  for  it,  cannot  become  the 
purchaser,  either  in  his  own  name  or  that  of  another,  whether  the  sale  be 
public  or  private.' 

To  cut  off  the  equities  of  the  original  parties  to  a  promissory  note,  m  the 
hands  of  a  third  person,  the  holder  must  not  have  received  it  in  payment 
of  an  antecedent  debt,  but  he  must  have  parted  with  something  for  it  at 
the  time,  or  incurred  responsibilities  to  a  third  person  on  the  credit  of  it.'^ 

Bill  to  have  certain  promissory  notes  delivered  up  and  can- 
celed. 

April  8th,  1839,  complainant  purchased  of  defendant  Stark- 
weather, who  was  then  clerk  to  the  Superintendent  of  Public 
Instruction,  the  west  half  of  the  northwest  quarter  of  section 
sixteen,  town  six  south,  of  range  ten  west,  and  executed  to  him 
the  notes  in  question,  payable  to  him  or  order,  in  part  payment. 
The  lot  purchased  was  apart  of  the  school  lands  belonging  t<» 

»See  Walton  r.  Ton-ey,  Harr.  Ch.,  259;  Beaubienr.  Poupard,  id.,  206;  Clute 
V.  Barron,  2  Mich.,  192;  People  r.  Township  Board  of  Overyssel,  11  id.,  222; 
Dwight  V.  Blackmar,  2  id.,  330;  Ames  v.  Port  Huron  Log  Driving  &  Booming 
Co.,  11  id.,  139;  P.  &  P.  N.  R.  R.  Co.  r.  Dewey,  14  id.,  477. 

*  Overruled  on  this  point.  See  Bostwick  v.  Dodge,  1  Doug.,  413;  Outwite 
r.  Porter,  13  ]\Iich.,  .533;  Baker  v.  Pierson,  5  id.,  459. 

319 


?A7  CxVSES  IN  CHANCEEY. 


Inserson  v.  Starkweather. 


the  State.  Bj  law,  tlie  Superintendent  of  Public  Instruction 
was  required  to  sell  all  school  lands  at  public  auction,  at  not 
less  than  eight  dollars  per  acre;  and,  after  having  offered  them 
twice  in  that  way,  in  different  years,  without  lindiug  a  pur- 
chaser, he  was  to  sell  them  at  that  j)rice,  at  private  sale.  The 
bill  charged  that  Starkweather  called  on  complainant,  and 
offered  to  sell  him  the  lot,  stating  that  he  had  purchased  it,  at 
one  of  the  public  sales,  at  eight  dollars  per  acre;  that  no  cer- 
tilicate  had  been  given  him  for  it,  but  that  he  had  blank  certifi- 
cates by  him,  signed  by  the  Superintendent,  and,  if  they  could 
make  a  bargain,  he  would  fill  up  one  to  the  complainant.  That 
complainant,  confiding  in  these  representations,  purchased  the 
lot,  and  agreed  to  pay  the  eight  dollars  per  acre  to  the 
[■^^347]  school  fund,  and  three  '^hundred  and  twenty  dollars  to 
Starkweather,  for  which  last  sum  he  executed  to  him  his 
three  promissory  notes;  and  Starkweather  filled  up  and  deliv- 
ered to  him  the  following  certificate: 

"  In  the  name  of  the  people  of  the  State  of  Michigan,  I,  John 
D.  Pierce,  Superintendent  of  Public  Instruction,  agreeable  to 
the  provisions  of  chapter  one,  title  twelve,  of  the  revised 
statutes,  hereby  certify,  that  at  a  private  sale  held  pursuant  to 
the  statute  aforesaid,  on  the  eighth  day  of  April,  A.  D.  1839, 
Cyrus  Ingerson,  of  St.  Joseph  County,  Michigan,  for  the  sum 
of  $640,  has  purchased  the  following  described  land,  to  wit: 
AVest  half  of  the  northwest  quarter  of  section  number  sixteen, 
in  township  number  six  south,  range  ten  west,  containing 
eighty  acres,  according  to  the  returns  of  the  Surveyor  General, 
at  eight  dollars  per  acre.  And  I  do  farther  certify  that  the 
consideration  received  therefor  from  the  said  purchaser,  is  the 
sum  of  sixty-four  dollars,  and  that  the  consideration  to  be  paid 
by  the  said  purchaser  is  the  sum  of  five  hundred  and  seventy- 
six  dollars,  in  nine  equal  annual  payments,  at  an  interest  of 
seven  per  centum,  to  be  paid  annually  at  the  office  of  said  Sup- 
erintendent of  Public  Instruction;  and  said  installments  may 
be  paid  before  the  same  shall  become  due,  by  giving  three 
months'  previous  notice  to  tlie  said  Superintendent.  And  in 
case  of  the  non-payment  of  the  said  interest  annually,  and  in 

320 


TllIllD  CIRCUIT,  JA^'UARY,  lSi4.  348 

Inprerson  v.  Starkweather. 

(•use  of  the  non-pajinent  of  the  said  installments  as  thej  become 
due,  by  tlie  said  purchaser,  or  by  any  other  person  claiming 
under  him,  then  this  certificate  shall  be  void  and  of  no  effect, 
and  all  the  interest  of  the  said  Cyrus  Ingerson,  or  of  any  person 
or  persons  claiming  under  him,  to  the  aforesaid  described  land, 
shall  be  absolutely  void,  and  the  full  title  to  such  land,  and 
the  right  to  the  possession  thereof,  shall  revest  in  the 
State;  and  the  said  Superintendent  may  take  *possession  [*348] 
thereof,  and  sell  the  same,  pursuant  to  the  provisions  of 
the  cliapter  and  title  of  the  revised  statutes  aforesaid.  Given 
under  my  hand  and  seal  this  eighth  day  of  April,  1839." 

The  bill  then  charged  that  the  lot  had  not  been  purchased 
by  Starkweather,  as  stated  by  him,  and  that  it  liad  twice  been 
offered  for  sale  at  public  auction  without  being  sold.  It  further 
stated  that  Starkweather  had  transferred  the  notes  to  AVillard, 
without  consideration ;  and  that  Willard  had  notice  of  the  cir- 
cumstances under  which  they  liad  been  given  when  he  took 
them. 

Starkweather  admitted  the  sale  of  the  lot,  and  the  giving  of 
the  certificate,  as  stated  in  the  bill.  Denied  that  he  represented 
himself  to  be  the  puschaser.  Admitted  he  told  com])lainant 
that  he  and  John  ISJorton,  Junr.,  had  purchased  it,  and  that  they 
had  received  no  certificate;  and  that,  if  he  wished  to  buy  it,  he 
could  fill  up  a  blank  certificate  to  himself,  and  then  transfer  it 
to  complainant,  who  must  pay  hira  $384,  and  take  it  subject 
to  all  payments  to  the  school  fund  except  the  first.  Complain- 
ant agreed  to  it;  and,  at  his  request,  he  filled  up  the  certificate 
directly  to  him,  to  avoid  the  trouble  and  expense  of  an  assign- 
ment from  himself  to  com])lainant.  IIo  and  Korton  became 
the  purchasers  of  the  lot,  Octol)er  17tli,  1838,  at  a  public  auc- 
tion at  which  he  acted  as  auctioneer.  The  lot  was  struck  off  to 
Norton  as  purchaser,  but  for  the  benefit  of  Norton  and  him- 
self; and  minutes  of  the  sale  were  entered  in  the  book  of  sales, 
in  pencil  marks,  as  was  customary  at  such  sales.  The  Superin- 
tendent was  not  present  at  the  sale.  Defendant  made  the  first 
payment  on  the  land,  amounting  to  sixty-four  dollars.  On  the 
delivery  of  the  certificate,  complainant  executed  to  him  four 
Vol.  L— 21  321 


349  CASES  IX  CHANCERY 


Ingerson  v.  Starkweather, 


promissorj  notes; — one   for   sixty -four  dollars,  payable  with 
interest   on    the  first  day  of   September   thereafter;— 
[*319]  *one  for  one  hundred  dollars  with  interest  payable  on 
the  first  day  of  January  thereafter— one  for  one  hun- 
dred dollars,  payable  in  one  year,  and  one  for  one  hundred  and 
twenty  dollars,  with  interest,  payable  in  two  years  from  the  first 
day  of  January  thereafter.     About  a  month  after  these  notes 
were  given,  the  last  three  of  them  were  exchanged  with  com- 
plainant, at  his  request,  for  three  others  bearing  date  April  8th, 
1839,  viz:  one  for  one  hundred  dollars,  payable  in  one  year,  one 
for  one  hundred  dollars,  payable  in  two  years,  and  one  for  one 
hundred  and  twenty  dollars,  payable  in  three  years,  from  and 
after  the  first  day  of  January,  1840,  with  interest.     On  De- 
csmber  20th,  1839,  these  last  notes  were  transferred  to  Willard, 
in  good  faith,  in   consideration  and  payment  of  professional 
services  previously  rendered,  and  subsequently  to  be  rendered. 
Willard  denied  he  had   any  knowledge,  information,  belief, 
or  suspicion,  that  the  notes  had  been  executed  under  the  circum- 
stances stated  in  the  bill,  when  they  were  transferred  to  him. 
He  purchased  them  in  good  faith,  December  20th,  1839.     They 
were  taken  by  him  in  payment  of  professional  services  rendered 
and  to  be  rendered.     He  was,  at  the  time,  foreclosing  a  mort- 
"•asre  for  Starkweather,  who  would  be  indebted  to  him  $40  on 
that  account  when  completed,  and  he  had  previously  rendered 
other  services  to  the  amount  of  $5.     At  the  time  of  putting  in 
his  answer,  he  had  many  demands  in  his  hands  for  collection, 
and  suits  to  prosecute,  for  Starkweather,  who  was  then  indebted 
to  him  for  professional  services  about  one  hundred  dollars,  and 
would  be  indebted  to  him,  when  the  whole  of  said  business  was 
l)rouo'ht  to  a  close,  in  all,  about  two  hundred  dollars.     He  had 
no  knowledge  of  any  difiiculty  between  complainant  and  Stark- 
weather about  the  notes,  until  some  time  in  May,  1840,  when 
he  was  spoken  to  on  the  subject  by  complainant's  solicitor. 
[*350]       *Replications  were  filed  to  the  answers,  and  the  cause 
was  heard  upon  the  pleadings. 

L.  F.  Stevens,  for  complainant. 
322 


THIRD  CIECUIT,  JANUARY,  1844.  3ol 

Ingerson  r.  Starkweather. 
E.  Bradley^  for  defendants. 

Tine  Chancellor.  The  complainant  is  entitled  to  relief 
Starkweather  represented  himself  as  tlie  ownier  of  the  lot,  or 
that  it  belonged  to  himself  and  Norton,  when  lie  sold  it  to  com- 
plainant. In  what  way,  accordin^^  to  his  own  statement,  did 
they  acquire  an  interest  in  it?  By  ]>nr('hasinfr  it  at  a  public 
auction  conducted  by  himself,  as  agent  and  auctioneer  for  the 
State.  He  could  not,  withont  a  breach  of  hi,-^  duty  to  the  State, 
purchase  at  such  sale.  It  is  contrary  to  every  sound  principle 
of  equity,  to  allow  an  agent,  who  is  authorized  to  sell  property 
for  the  best  price  that  can  be  obtained  for  it,  to  become  the 
purchaser  himself  It  is  immaterial  whether  the  sale  be  public 
or  private;  whether  the  agent  purchase  in  his  own  name  or 
that  of  another.  The  object  of  the  rule  is  to  secure  fidelity  on 
the  part  of  the  agent  to  his  principal;  and  it  is  as  applicable  to 
])ublic  agents  as  others,  and  should,  if  anything,  be  enforced 
more  rigidly  against  them,  as  they  have  greater  opportunities 
of  abusing  their  trust. 

Starkweather  appears  to  have  been  aware  of  the  impropriety 
of  his  ap23earing  as  a  purchaser  at  the  sale,  for  the  lot  was  bid 
off  in  Norton's  name  alone,  although  Starkweather  was  to  have 
an  interest  in  it.  "Was  Norton  at  the  sale,  and  did  he  bid  it  off? 
The  answer  is  silent  on  this  point.  Defendant  was  interroga- 
ted by  the  bill  as  to  what  persons  were  present  at  the  sale; — 
he  names  some  two  or  three,  but,  says  not  a  word  about  Norton. 
Neither  does  he  say  in  express  terms  Norton  was  the  purchaser. 
His  language  is  that  "the  land  was  struck  off  to  John 
Norton,  *Junr.,  as  the  purchaser^  for  the  benefit  of  him-  ["^SSl] 
self  the  said  defendant,  and  John  Norton,  Junr." 

Suppose  the  sale  genuine  :  Norton  and  Starkweather,  by 
omitting  to  comply  with  the  terms  of  the  sale,  had  ceased  to 
have  any  interest  in  the  lot  when  it  was  sold  to  complainant. 
Tlie  law  required  one-tenth  of  the  ])urchase  money  to  be  paid 
in  cash,  and  the  remainder  of  it  in  annual  installments  of  ten 
per  cent.,  at  an  interest  of  seven  per  cent.,  to  be  paid  annuallv. 
R.  S.  251.   The  first  payment  was  not  made  at  the  sale,  nor  until 

323 


352  CASES  m  CHANCERY. 

Ingerson  v.  Starkweather. 

Starkweather  had  sold  to  compLainant.  This  is  clearly  to  be 
inferred  from  Starkweather^s  answer^  and  if  tlie  fact  had  been 
otherwise,  he  would  probably  have  stated  it.  The  public  sale 
was  on  October  17th,  1838;  and  on  the  8th  day  of  April,  1839, 
nearly  six  months  after,  when  he  sold  to  complainant,  he  and 
Xorton  had  not  procured  a  certificate.  In  his  answer,  he 
says,  he  proposed  to  sell  the  lot  to  complainant,  "  subject  to 
all  payments  excepting  the  first,  to  he  made  to  said  Superin- 
tendent." In  another  part  of  his  answer  he  says  that  "he 
paid  to  the  said  Superintendent  the  sum  of  sixty-four  dollars, 
l>eing  the  first  payment  to  be  made  on  the  purchase  of  lands, 
according  to  the  law  regulating  the  sale  of  said  school  lands  ; 
l)ut  at  what  time,  whether  before,  or  after  he  sold  to  complain- 
ant, he  does  not  state.  The  certificate  to  complainant  is  dated 
April  8th,  1839,  instead  of  October  17th,  1838,  when  the 
]mblic  sale  took  place  ;  the  State  thereby  losing  neany  six 
months'  interest.  "Why  was  not  the  certificate  dated  back  to 
the  time  of  the  public  sale?  Why  does  it  state  the  land  was 
sold  "  at  a  private  sale  "  ? 

I  do  not  rest  my  decision  on  this  ground  alone,  but  on 
another  and  stronger  ground ;  that  the  sale  of  October  17th 

was  not  a  honajlde  sale,  but  intended  to  stand  as  such 
[*352]  if  the  land  could  be  sold  to  advantage;  otherwise  to  *be 

abandoned.  The  circumstances  already  ■  stated  show 
this  pretty  conclusively  to  my  mind,  but  there  are  others. 
Norton  does  not  appear  to  have  ever  had  anything  to  do  with 
the  purcliase.  He  was  not  at  the  public  sale,  nor  does  it 
appear  that  he  had  an  agent  there.  He  had  nothing  to  do  in 
making  the  bargain  witli  complainant  ;  the  notes  were  made 
payable  to  Starkweather,  or  order,  and  were  afterwards  trans- 
ferred by  him  to  Willard,  under  circumstances  that  exclude  all 
idea  of  Norton's  having  any  interest  in  them.  AVe  hear  nothing 
of  Norton  in  these  transactions,  or  in  the  payment  of  the  sixty- 
four  dollars  to  the  Superintendent. 

The  land  having  been  twice  offered  for  sale  at  public  auction, 
without  being  in  ftict  sold,  was  subject  to  private  sale,  at  the 
minimum  price  of  eight  dollars  per  acre;  and  complainant,  or 

324 


FIRST  CmCUIT,  FEBRUAEY,  1844.  353 


Gould  r.  Tryon. 


aii}'^  other  person  wishing  to  purchase  it,  was  entitled  to  it  at 
that  price.  Complainant  was  induced  to  pay  more  for  it  by 
i-eason  of  the  representation  of  Starkweather,  that  it  belonged 
to  him,  when  in  fact  it  belonged  to  the  State. 

Willard  cannot  be  regarded  as  the  holder  of  the  notes  for  a 
valuable  consideration,  and  without  notice,  to  a  greater  amount 
than  the  value  of  the  services  rendered  by  him,  under  the 
agreement  with  Starkweather,  before  he  had  notice  of  the  man- 
ner in  which  they  had  been  obtained.  lie  gave  neither  money 
nor  property  for  them.  lie  took  them  in  payment  of  an 
antecedent  debt,  and  professional  services  to  be  rendered.  So 
iar  as  such  services  were  rendered  before  notice  to  him,  he  is 
entitled  to  the  protection  of  the  Court  ;  but  no  further.  To 
cut  off'  the  equities  of  the  original  parties  to  a  note,  in  the 
hands  of  a  third  person,  the  holder  must  not  have  received  it 
in  payment  of  an  antecedent  debt,  but  he  must  have  parted 
with  something  for  it  at  the  time,  or  incurred  responsi- 
bilities to  *a  third  person  on  the  credit  of  it.  Rosa  v.  [*353] 
Brotherton,  10  "Wend.  R  85 ;  Wardell  v.  Howard,  9 
Wend.  R.  170,  Codington  v.  Bay,  20  J.  R.  637;  Rart  v. 
Palmer,  12  Wend.  R.  523. 

The  services  rendered  by  Willard  before  notice  cannot  amount 
to  a  o-reat  deal,  but  there  must  be  a  reference  to  a  Master  to 
ascertain  the  amount. 


William  Gould  et  al.  v.  Charles  Tryox. 

Where  a  judgment  creditor's  bill  was  filed  on  an  execution  returned  unsatis- 
fied nearly  nine  years  before,  a  motion  for  the  appointment  of  a  receiver 
was  denied. 

An  execution  must  be  returned  within  a  reasonable  time  before  the  filing  of  a 
judgment  creditor's  bill,  and  nine  years  is  not  a  reasonable  time. 

Motion  for  the  appointment  of  a  receiver,  on  a  judgment 

creditor's  bill. 

325 


354  CASES  m  CHANCEEY. 

Gould  V.  Tryon. 

J^.  B.  Harrington,  in  support  of  the  motion. 
J.  S.  Abbott,  contra. 

The  Chancelloe.  Complainants,  in  May,  1834:,  obtained  a 
judgment  in  the  Circuit  Court  of  "Wayne  county,  against  Tryon, 
:ind,  in  October  following,  sued  out  execution,  returnable  on  thu 
first  day  of  December  thereafter,  on  which  day  it  was  returned 
unsatisfied  by  the  sheriff.  No  step  appears  by  the  bill  to  have 
been  taken  for  the  collection  of  the  judgment,  from  that  time 
until  complainants  filed  their  bill  in  this  Court,  on  October 
31st,  1843;  and,  on  that  account,  the  motion  for  a  receiver 
[  "354:]  is  resisted, — *nearly  nine  years  having  elapsed  between 
the  return  day  of  the  execution,  and  the  filing  of  the  bill. 

I  think  the  objection  a  good  one.  The  sherilTs  return  shows 
that  defendant  had  no  goods  or  chattels,  lands  or  tenements,  to 
satisfy  the  judgment,  on  the  first  day  of  December,  1834,  when 
it  was  returned;  but  it  does  not  show,  and  the  law  does  not  pre- 
sume, that  he  had  no  property  liable  to  execution  nine  years 
after,  or  nearly  that,  when  the  bill  was  filed.  At  law,  a  party 
cannot  take  out  execution  on  a  judgment  in  his  favor,  after  two 
years  from  the  time  he  was  entitled  to  it,  or  from  the  return  day 
of  a  preceding  execution,  if  he  has  taken  out  one  within  that 
time,  without  a  special  application  to  the  Court,  and  leave  given 
for  that  purpose.     Laws  1841,  p.  134. 

If  a  bill  may  be  filed  nine  years  after  the  return  of  an  execu- 
tion, there  is  nothing  to  prevent  filing  it  at  any  time  before  the 
judgment  is  outlawed.  Such  a  construction  would  be  contrary 
to  the  spirit  of  the  statute,  which  was  intended  to  give  the  party 
a  remedy  in  this  Court,  where  he  had  made  a  hona  fide  attempt 
to  collect  his  judgment  at  law,  within  a  reasonable  time  before 
filing  his  bill.  Kine  years  is  unreasonable  for  that  purpose; 
and  there  is  no  hardship  in  requiring  a  party  who,  after  the 
return  of  an  execution  unsatisfied,  has  lain  by  so  long,  without 
taking  any  measures  to  enforce  the  collection  of  his  judgment, 
to  take  out  a  new  execution  and  have  it  returned,  before  lie 
comes  here  for  relief. 

Motion  denied. 
326 


TIIIED  CIRCUIT,  FEBRUARY,  1S44. 


Carroll  v.  Potter. 


^Charles  H.  Carroll  and  Lucius  Lyon  v.  p'355] 
Potter  ct  a  I 

^Vherc  the  alles'ccl  fraud  set  up  in  d(-'f'eii.se  of  a  bill  consists  of  a  variety  of  cir- 
eiunstunces,  it  should  be  taken  advantage  of  by  answer,  and  not  by  f)lea.' 

An  assignee  of  a  contract  cannot  insist  upon  fraud  used  in  the  making  of  the 
contract  on  the  party  under  whom  he  claims. 

I  Iearing  on  a  plea. 

C.  Da?ia,  in  support  of  the  plea. 

Church  &  Johnson^  contra. 

The  Chancellor.  The  plea  must  be  overruled.  It  is  bad 
on  several  accounts.  It  is  multifarious,  or  double.  Firsts  it 
sets  up  fraud  on  the  part  of  Carroll  and  Lyon  in  the  contract 
they  entered  into  with  "Winsoi-,  for  the  purpose  of  avoiding  that 
contract;  and,  Secondly^  it  states  that  that  contract  Avas  an- 
nulled. The  alleged  fraud  consists  of  a  variety  of  circumstan- 
ces; and,  where  that  is  the  case,  the  defense  should  be  made  by 
answer  and  not  b}'  plea,  as  the  examination  in  proof  of  the  fraud 
must  still  be  at  large,  and  the  effect  of  allowing  a  plea  in  such 
case  would  be  to  have  the  judgment  of  the  Court  on  the  circum- 
stances of  the  case,  before  they  were  proved.      Coop.  Eq.  PI. 

There  is  a  still  further  objection  to  the  facts  and  circum- 
stances stated  in  the  plea.  They  do  not  appear  to  me  to  be  a 
good  defense  to  the  bill.  As  assignee  of  the  contract,  Calkins 
camiot  insist  upon  the  fraud.  Besides,  lie  purchased  the  mort- 
gaged premises  of  Macy,  and  took  a  deed  from  him,  subject  to 
the  mortgage. 

Plea  overruled. 

^  See  Albany  City  Bank  v.  Dorr,  ante,  317. 

327 


356  CASES  m  CHANCERY. 


Seymour  v.  Jerome. 


[*356]  ^Charles  Seymour  v.  Horace  K.  Jerome  and 
Edwin  Jerome. 

A  complainant  may,  at  any  time  before  there  has  been  an  interlocutory  or 
final  decree  in  a  cause,  dismiss  the  bill  of  course,  on  payment  of  costs. ^ 

"Where  an  interlocutory  order  had  been  entered  by  consent  of  parties,  opera- 
ting as  an  adjudication  to  some  extent  on  the  rights  of  the  parties,  the 
Court  refused  to  allow  the  complainant  to  dismiss  his  bill. 

Tins  was  a  bill  fur  a  settlement  of  partnership  accounts  be- 
tween the  complainant  and  defendant  Horace  R.  Jerome. 
Edwin  Jerome  was  made  a  party  by  reason  of  his  claiming  to 
be  the  owner  of  a  bond  and  mortgage,  executed  by  one  Shep- 
herd to  Horace  R.  Jerome,  which  complainant  was  to  pay,  and 
whicli  he  alleged  he  had  paid  to  H.  R.  Jerome,  in  their  partner- 
ship dealings.  The  defendants  answered,  and,  after  a  replica- 
tion had  been  tiled,  an  interlocutory  order  was  entered,  by  con- 
sent of  parties,  for  an  account  of  the  partnership  business,  to  be 
taken  and  stated  between  the  parties  by  a  Master. 

^.  S.  Zee,  for  complainant,  moved  for  leave  to  dismiss  the 
bill  on  such  terms  as  the  Court  might  deem  equitable. 

^,  C.  Seaman,  for  defendants,  opposed  the  motion. 

The  Chancellok.  The  interlocutory  decree,  or  order,  was 
entered  by  consent  of  parties.  It  admits  the  partnership,  and 
the  right  of  complainant  to  an  account  of  the  partnership  deal- 
ings. To  that  extent  it  is  an  adjudication  on  the  rights  of  the 
parties.  A  complainant  may,  at  any  time  before  there  has  been 
an  interlocutory  or  final  decree  in  a  cause,  dismiss  his  bill  of 
course,  on  the  payment  of  costs.  This  is  the  general  rule,  but 
the  present  application  does  not  come  within  it. 

Motion  denied. 


^  See  Jerome  v.  Seymour,  post,  359. 
328 


FIRST  CIRCUIT,  MARCH,  ISU. 


Whipple  V.  Stewart. 


^^'Charles  AV.  Whipple  v.  Charles  H.  Stew-  [357*] 

ART. 

The  time  fixed  by  the  Master  for  the  service  of  a  summons,  should  be  stated 
in  the  summons  itself,  or  form  a  part  of  the  underwriting,  where  the  lat- 
ter is  necessary  to  infonii  the  party  of  the  object  of  the  hearing;  and  the 
underwriting,  as  well  as  the  summons,  should  be  signed  by  the  Master. 

Where  a  defendant  appeared  before  a  Master  at  the  return  of  a  summons, 
and  objected  to  his  proceeding,  on  the  ground  that  no  time  had  been  fixed 
for  the  service  of  the  summons,  it  was  held,  that  such  appearance  was  no 
waiver  of  his  right  to  make  such  objection. 

Where  proceedings  are  to  be  had  under  an  order  of  reference  to  a  Master,  it 
is  not  necessary  to  serve  a  copy  of  such  order  on  defendant  with  the  Mas- 
ter's summons,  but  he  is  bound  to  take  notice  of  it  without  service. 

This  m;is  a  judgment  creditor's  bill. 

A  motion  was  made  for  an  attachment  against  Stewart,  for 
not  submitting  to  an  examination  before  the  Master,  on  an 
order  for  the  appointment  of  a  receiver;  and  for  refusing  to 
assign  his  property  to  the  receiver. 

A.  Davidson,  in  support  of  the  motion. 

J.  F.  Joy,  and  C.  II.  Stewart,  in  person,  contra. 

TuK  CuANCELLOR.  Two  objcctions  are  taken  to  the  motion; 
frst,  ^hat  the  Master  did  not  iix  a  time  for  the  summons  to  be 
served  on  defendant  previous  to  the  liearing  before  him,  as  re- 
quired by  tlie  seventy-second  rule  of  the  Court;  and,  second^ 
that  a  copy  of  the  order  for  the  appointment  of  a  receiver  was 
not  served  witli  the  summons. 

The  summons  was  dated  January  25th,  1844,  and  required 
defendant  to  ai)pear  before  tlie  Master  on  the  thirty -first  day  of 
that  month,  and  was  underwritten,  "  To  proceed  to  examine  tlie 
defendant  Charles  II.  Stewart,  and  take  an  assignment 
from  him  to  the  receiver,  pursuant  to  "'^'the  order  of  [*35S] 
reference."     The  summons  and  underwriting  were  both 

329 


359  CASES  IN  CHANCERY. 

Whipple  v.  Stewart. 

signed  by  tlie  Master;  and  defendant  appeared  at  the  time  and 
place  appointed,  and  made  the  first  of  the  above  stated  objec- 
tions, before  the  Master,  which  was  overruled.  The  other  ob- 
jection was  not  then  taken,  and  is  now  made  for  the  first  time. 
The  summons  was  served  on  the  25t]i  day  of  January,  the 
day  it  bears  date,  and,  in  all  probability,  a  greater  length  of 
time  before  defendant  was  required  to  appear,  than  the  Master 
w^ould  have  directed,  under  the  circumstances  of  the  case,  had 
he  fixed  the  time  at  all.  But  the  seventy-second  rule  requires 
the  summons  to  be  served  upon  the  adverse  party,  or  his  solici- 
tor, such  time  previous  to  the  day  appointed  for  hearing  as  the 
Master  may  deem  reasonable,  and  direct,  taking  into  consider- 
ation the  nature  of  the  matter  to  be  examined,  and  the  residence 
of  the  parties.  By  appearing  and  taking  the  objection  before 
the  Master,  defendant  certainly  did  not  waive  it,  as  was  insisted 
on  the  argument.  The  time  fixed  by  the  Master  for  the  service 
of  a  summons,  previous  to  the  hearing,  should  be  stated  in  the 
summons  itself,  or  form  a  part  of  the  underwriting,  where  the 
latter  is  necessary  to  inform  the  party  of  the  object  of  the 
hearing;  and  the  underwriting,  as  well  as  the  summons,  should 
be  signed  by  the  Master. 

The  second  objection,  it  being  a  question  of  practice  merely, 
and  not  having  been  taken  before  the  Master,  was  waived  by 
the  appearance,  conceding  it  would  have  been  a  good  objection 
had  it  been  insisted  on  at  the  time;  which  concession,  how- 
ever, I  do  not  make.  The  Master  must  have  a  copy  of  the 
order  to  base  his  proceedings  upon,  but  there  is  no  good^ reason 
for  requiring  a  copy  to  be  served  on  defendant.     He  is  bound 

to  take  notice  of  the  entry  of  the  order  at  his  peril;  and, 
[•^359]  if  he  has  not  seen  it  ^before,  he  will  have  an  opportunity 

of  seeing  and  examining  it  in  the  Master's  office,  and  of 
ascertaining  what  it  requires  of  him.  The  order  is  to  be  exe- 
cuted in  the  j)resence,  and  under  the  direction  of  a  Master;  and, 
in  this  respect,  diifers  materially  from  an  order  requiring  a 
party  to  do  some  act  without  the  intervention  of  a  Master,  as 
to  put  in  an  answer  within  a  specified  time,  or  the  like. 
Motion  denied. 

330 


FIRST  CIRCUIT,  MARCH,  1844.  3G0 

Jerome  v.  Seymour. 


Edwin  Jeiiome   v.   Charles   Seymour. 

Where  leave  is  given  to  complainant  to  dismiss  his  bill  conditionally,  the  de- 
fendant may,  until  the  condition  is  complied  \vith,  consider  the  case  as  in 
Court  or  out  of  Court,  at  his  discretion ;  and  may  either  proceed  in  it,  or 
consider  it  dismissed  and  apply  to  the  Court  to  enforce  the  payment  of  his 
costs.^ 

Where  leave  had  been  granted  complainant  to  dismiss  his  bill  on  payment  of 
costs,  and  the  order  was  entered  generally  without  mentioning  costs,  on 
application  of  the  defendant,  it  was  ordered  to  be  amended  so  as  to  cor- 
respond with  the  terms  on  which  leave  to  dismiss  was  granted.* 

At  the  last  motion  day  leave  was  granted  to  complainant  to 
dismiss  his  bill,  on  payment  of  defendant's  costs;  and  an 
order  was  entered  dismissing  the  bill  generally,  without  mak- 
ing any  mention  of  the  costs.  The  defendant,  by  petition, 
asked  for  an  amendment  of  the  order,  so  as  to  make  the  dis- 
missal of  the  bill  depend  on  the  payment  of  his  costs. 

E.  S.  Lee^  in  support  of  the  motion. 

E.  C.  Seaman,  contra. 

TuE  Chajstcellok.  The  motion  must  be  granted.  As  the 
order  now  stands,  the  bill  is  dismissed,  and  defendant 
■••loses  his  costs,  as  there  is  no  mention  of  them  in  the  [*3G0] 
order  dismissing  the  bill.  Leave  was  given  complain- 
ant to  dismiss  his  bill  conditionally,  that  is,  upon  the  payment 
of  defendant's  costs;  and  the  order  should  have  been  so  entered. 
The  effect  of  such  a  dismissal  is  that  complainant  is  not  out  of 
Court,  unless  at  the  election  of  the  defendant,  until  he  has  paid, 
or  offered  to  pay,  the  costs.  Until  the  costs  are  paid,  defend- 
ant may  consider  the  case  in  Court,  and  proceed  in  it  as  if  no 

^  See  Seymour  r.  Jerome,  ante,  356. 

■■'See  Bates  v.  Garrison,  HaiT.  Ch.,  221;  Emory  r.  Whitwell,  6 Mich.,  474, 
amendment  of  judgments  in  general;  Foster  v.  Alden.  21  id.,  507,  justice  of 
the  peace  not  authorized  to  amend  his  record  of  a  judgment. 

331 


361  CASES  IN  CHANCERY. 

Bird  V.  Hamilton. 

order  liad  been  entered;  or  he  may  consider  the  bill  as  dis- 
missed, and  apply  to  the  Court  to  enforce  the  payment  of  his 
costs,  according  to  the  implied  agreement  to  that  etfect  con- 
tained in  the  order.     Cummins  v.  Bennett,  8  Paige  E.  79. 
Motion  granted. 


[*361]  ^Caroline  E.  Bird,  Executrix,  and  Charles 
W.  Lane,  Executor,  &c.,  of   Ira  R,  Bird, 

DECEASED,    V.    JoHN    HAMILTON. 

The  intention  of  parties  to  an  instrument,  when  that  intention  is  apparent 
from  the  whole  instrument,  and  not  repugnant  to  any  rule  of  law,  will 
control  the  meaning  of  a  particular  word  or  phrase,  unguardedly  used, 
and  seeming  to  indicate  a  different  intention.' 

It  is  the  intention  of  parties,  rather  than  the  language  employed  to  express 
their  intention,  that  courts  chiefly  regard.^ 

Where  the  question  of  partnership  arises,  not  with  third  persons,  but  between 
the  ijarties  themselves,  the  agreement  out  of  which  the  supposed  part- 
nership arises,  is  to  be  construed  as  any  other  instrument  between  the 
same  parties. 

Where  a  party  had  failed  to  perform  the  preliminary  conditions,  upon  the 
compliance  with  which  a  partnership  was  to  be  formed,  and  the  other  par- 
ty to  the  agreement,  to  enable  liim  to.  perform,  furnished  his  own  capital, 
and  for  a  short  time  carried  on  the  business  in  the  name  of  the  proposed 
finn,  \t  was  held,  that  this  was  no  waiver,  and  could  not  entitle  the  de- 
faulting party  to  the  rights  of  a  partner. 

A  waiver  should  not  be  implied  from  slight  circumstances. 

Tnis  was  a  bill  for  an  account  of  copartnership  property  and 
effects. 

Complainants  filed  their  bill  in  this  Court,  June  29th,  1842. 
stating  that,  in  December,  1839,  their  testator,  Ira  H.  Bird,  and 
the  defendant,  had  it  in  contemplation  to  form  a  copartnership, 

'See  Bronson  v.  Green,  ante,  56;  Gray  v.  Gibson,  6  Mich.,  312. 
^  See  note  1,  supra. 

332 


FIRST  CIRCUIT,  MARCH,  1844.  302 

Bird  V.  Hamilton. 

for  conveying  the  United  States  mail  from  Xiles,  in  the  State 
of  Michigan,  to  Chicago  in  the  State  of  Illinois;  and  that,  on 
the  twenty-third  day  of  that  month,  with  a  view  to  such  con- 
templated copartnership,  Bird  bid  off  a  contract  for  carrying  the 
mail  on  said  route,  in  four-horse  post-coaches,  pursuant  to  the 
instructions,  conditions,  and  j^rovisions,  contained  in  a  contract 
for  canning  said  mail,  afterwards  entered  into  by  Bird  and 
Hamilton  of  the  one  part,  and  the  United  States  of 
America  of  the  *other  part;  a  copy  of  which  was  an-  [*362] 
nexed  to  the  bill.  This  contract  for  conveying  the  mail 
was  to  commence  on  the  iirst  day  of  July,  1840,  and  to  con- 
tinue in  force  until  June  30th,  1842.  That,  May  IGth,  1840, 
l>ird  and  Hamilton  entered  into  the  following  articles  of  agree- 
ment: 

"  Articles  of  agreement  and  contract,  made  this  sixteenth 
day  of  May,  A.  D.  1840,  between  Ira  R.  Bird,  of  Ypsilanti,  and 
John  Hamilton,  of  Birmingham,  both  of  the  State  of  Michi- 
gan, witnesseth:  That,  whereas,  the  said  Bird  did  obtain  from 
the  Post  OiSce  Department  a  contract  for  conveying  the  mail, 
from  Kiles,  in  the  State  of  Michigan,  to  Chicago,  in  the  State 
of  Illinois;  and  whereas,  the  said  ii>ird  agrees,  and  hereby  does 
associate  the  said  Hamilton  with  him  in  said  contract  for  con- 
veying the  mail,  which  is  to  commence  on  the  first  day  of  July, 
A.  D.  1840,  and  to  terminate  on  the  thirtietliday  of  June,  A.  D. 
1842;  and  whereas,  the  said  Hamilton  has,  and  does  agree  to 
superintend  said  business  personallv,  in  consideration  of  his 
receiving  two-thirds  of  the  profits  or  loss  of  said  business,  of 
carrying  the  said  mail  and  passengers;  it  is  therefore  agreed  to 
enter  hereby  into  partnership,  for  the  special  business  of  carry- 
ing the  mail  and  passengers  between  Xiles  and  Chicago  afore- 
said. The  said  Bird  is  to  furnish  one-third  part  of  the  capital 
or  stock  for  said  business,  and  to  receive  one-third  ]iart  of  the 
]irofits  or  loss  of  said  business;  and  the  said  Hamilton  is  to 
furnish  two-thirds  of  the  capital  or  stock  of  said  business,  and 
to  receive  two-thirds  of  the  ]>]-ofits  or  loss  of  said  business.  The 
business  to  be  conducted  under  the  name  and  style  of  Bird  and 
Hamilton.     And  whereas,  the  said  Hamilton  will  have  the  gen- 

333 


363  CASES  IN  ClIANCEEY. 

Bird  I'.  Hamilton. 

eral  direction  of  business  on  tlie  road  aforesaid,  lie  therefore 
hereby  agrees  to  bind  himself  to  furnisli  to  the  said  Bird,  a  full 

and  perfect  exhibit  of  the  receipts  and  expenditures  ap- 
[■^363]  pertaining  to  said  business,  and  j)rj  over  to  said  *Bird 

any  surplus  in  his  hands;  and  the  said  Bird,  if  there  is 
a  deficit,  hereby  agrees  to  pay  to  the  said  Hamilton  one-third 
of  said  deficit.  The  said  parties  hereby  agree  and  bind  them- 
selves to  do  all  in  their  power  to  promote  the  interest  of  the 
Detroit  and  Chicago  line  of  stages,  as  it  now  runs  on  the  Chi- 
cago road,  and  for  that  purpose,  to  receive  fare  through,  and  to 
settle  balances  once  a  month,  if  so  often  required  by  either  par- 
ty. jSTeither  party  to  this  instrument  shall  sell  his  interest 
without  giving  to  the  other  the  first  right  of  purchase,  a^t  tlie 
price  offered  by  another.  At  the  expiration  of  said  mail  con- 
tract, if  the  said  parties  do  not  re-obtain  the  same,  the  stock 
shall  be  divided,  or  sold,  each  party  receiving  his  p7'0  7'ata,  to 
wit,  the  said  Bird  one-third,  and  the  said  Hamilton  two-thirds, 
of  said  stock  or  partnership  moneys  or  eflects  of  every  descrip- 
tion." 

The  bill  then  stated  that,  to  perform  their  contract  with  the 
government,  they,  in  the  name  of  Bird  and  Hamilton,  purchase, 
and  procure  to  be  purchased  coaches,  horses,  and  other  stock. 
That  some  of  the  coaches  were  purchased  by  Bird,  of  Gilbert 
&  Eaton,  of  Troy,  in  the  State  of  jSTew  York,  and  the  remain- 
der of  the  stock  of  William  II.  Overton  &  Co.,  who  held  the 
previous  mail  contract  on  the  route.  That  the  purchase  of 
Overton  &  Co.,  was  made  by  Hamilton  in  his  own  name,  on 
account  of  some  misunderstanding  and  bad  feeling  existing  at 
the  time  between  Overton  and  Bird,  but  for  the  use  and  benefit 
of  the  firm.  That  one-fourth  of  the  purchase  money  was  paid 
down,  and  the  remaining  three-fourths  were  to  be  paid, — one- 
fourth  on  the  first  day  of  January,  18-11,  one-fourth  on  the  first 
day  of  April  following,  and  the  remaining  fourth  on  the  first 
day  of  July  thereafter;  which  payments,  amounting  in  all  to 

$6,300,  were  made,  except  the  first,  out  of  the  receipts 
[*364]  and  profits  of  the  mail  contract,  and  the  "^transportation 

of  passengers.     That  it  was  the  intention  of  Bird  and 

334 


FIRST  ClliCL'lT,  MAliCll,  1S44.  365 

Bird  V.  Hamilton. 

Hamilton  to  borrow,  on  tlie  credit  of  the  company,  the  money 
necessary  to  stock  the  road,  and  to  repay  it  from  the  receipts  of 
the  road;  and  that  the  amount  necessary  for  that  purpose  was 
borrowed  by  tliem.  Tluit  Hamilton  had  received  on  the  mail 
contract  about  $15,000,  and  that  what  had  been  received  from 
passengers  was  equal  to  the  expenses  of  running  the  road.  That 
the  copartnership  was  carried  on  by  the  parties,  each  devoting 
his  time  and  attention  to  it,  until  October  25th,  ISiO,  when 
Bird  departed  this  life,  leaving  a  last  will  and  testament,  and 
complainants  his  executrix  and  executor.  That  Hamilton  took 
possession  of  the  coaches,  horses,  and  other  stock  belonging  to 
the  firm,  amounting  to  about  $8,000,  and  the  books  and  other 
evidences  of  debt,  and  excluded  complainants  from  all  partici- 
])ation  in,  and  knowledge  of  the  business,  and  refused  to  come 
to  any  settlement  with  them. 

Defendant,  by  his  answer,  denied  that  in  December,  1839, 
Bird  and  himself  were  in  consultation  to  form  a  copartnershi]) 
to  carry  the  United  States  mail,  from  Niles  to  Chicago;  and 
stated  that  there  was  no  consultation  relative  to  such  partner- 
ship, until  March,  1840,  when  Bird  informed  him  he  had,  the 
preceding  September,  put  in  proposals  to  the  Post  Oliice  De- 
partment at  the  city  of  Washington,  for  carrying  the  mail  «>n 
said  route  for  two  years,  commencing  July  1st,  1840,  at  an 
annual  compensation  of  $8,400;  that  his  proposal  had  been 
held  under  consideration  by  the  department  until  that  present 
month,  when  he  was  notified  they  would  be  accepted,  if  he 
would  abide  by  them,  and  take  the  contract  with  the  terms 
and  conditions  annexed  to  it  by  the  department.  Bird  also 
stated  that  he  had,  in  the  mean  time,  taken  aiiother  con- 
tract, which  made  it  inconvenient  for  him  to  attend  *per-  p365j 
sonallv  to  carrying  out  the  terms  of  th6  government; 
and  he  then  proposed  to  enter  into  acopartncrshi])  with  defend- 
ant, for  transporting  the  mail  and  passengers  on  said  route, 
as  stated  in  the  bill.  Defendant  afterwards  went  to  Chicago, 
over  said  route,  to  see  and  become  acquainted  with  it,  and,  on 
his  return,  it  was  agreed  a  copartnership  should  be  formed 
between  them;  and  on  May  16th,  1840,  the  articles  of  agree- 

335 


366  CASES  m  CHANCERY. 

Bird  f.  Hamilton. 

ment  set  out  in  the  bill  were  drawn  up  and  signed  by  the  par- 
ties. After  they  had  so  agreed  to  become  partners,  and  not 
before,  Bird  notified  the  department  tliat  he  and  defendant 
would  take  the  contract,  which  was  executed  by  defendant  and 
Bird  of  the  one  part,  and  the  United  States  of  the  other  part, 
on  the  first  day  of  June,  1840. 

Defendant  admitted  some  of  the  stock  for  carrying  on  the 
j^roposed  partnership,  consisting  of  coaches  and  the  like, 
amounting  to  $700,  was  purchased  of  Gilbert  and  Eaton,  on 
account  of  the  proposed  co-partnership.  Bird  stated  he  was 
jroing  to  Washino-ton,  jSTew  York  and  Albany,  on  his  own  busi- 
ness,  and  would  make  any  purchases  for  the  proposed  partner- 
ship, without  expense;  and,  with  a  view  to  making  such  pur- 
chases he  was  furnished  with  a  certificate  of  defendant's  ability  to 
meet  his  pecuniary  engagements.  On  making  such  purchase, 
a  draft  was  drawn  by  Bird  for  the  amount,  on  the  Post  Ofiice 
Department  at  Washington,  to  be  paid  out  of  moneys  to  be 
received  on  the  mail  contract,  which  draft  was  subsequently 
paid  by  the  department. 

July  1st,  1810,  defendant  placed  upon  said  route,  for  the 
transportation  of  passengers  and  the  mail,  sixteen  valuable 
liorses  and  one  coach,  worth  altogether  $1,280,  and  for  that 
purpose  also,  about  the  same  time,  purchased  of  William  H. 
Overton  &  Co.,  stock  to  the  amount  of  $6,387.  This  pur- 
chase was  not  made  in  defendant's  name,  for  the 
[*3G6]  ^reason  stated  in  the  bill.  The  contract  for  the  pur- 
chase was  made  some  time  previous  to  July  first,  and 
was  intended  for  the  proposed  co-partnership.  Its  terms  were, 
one-fourth  to  be  paid  July  1st,  1810,  and  the  remaining  three- 
fourths  to  be  secured  by  negotiable  promissory  notes,  payable 
in  six,  nine  and  twelve  months,  with  responsible  indorsers,  cer- 
tified to  be  good  l)y  the  Bank  of  Michigan.  After  the  terms 
of  the  purchase  had  been  agreed  on,  defendant  communicated 
them  to  Bird,  and  requested  him  to  provide  his  third  of  the 
money  to  be  paid,  and  securities  to  ba  given,  which  he  wholly 
failed  to  do. 

Sickness  in  defendant's  family  prevented  his  being  at  ISTiles 

336 


FIRST  CIRCUIT,  MARCH,  1844.  367 

Bird  V.  Hamilton. 

on  the  first  of  July,  and  until  the  eighth  of  that  month;  but 
he  sent  the  horses  and  coach  ahov^e  mentioned,  under  charge  of 
an  agent,  and  requested  Bird  to  be  there  on  that  day,  that  there 
might  be  no  failure  in  carrying  the  mail.  Bird  was  there  on 
the  first  of  July,  but  Overton  &  Co.  Avould  not  permit  him,  or 
defendant's  agent,  to  take  possession  of  the  property  agreed  to 
be  purchased  of  them,  until  the  agreement  for  the  ])urchase 
was  fulfilled.  On  the  eighth  of  July  defendant  arrived  at 
Niles,  and  found  Bird  had  wholly  failed  to  perform  the  agree- 
ment on  his  part,  and  defendant  ]y,xk\  Overton  &  Co.  the  whole 
of  the  first  installment,  and  gave  his  indorsed  promissory  notes 
for  the  others,  as  required  by  the  contract. 

Defendant  suffered  much  embarrassment  in  being  com- 
pelled to  pay  the  whole  of  the  first  installment;  and  he  then 
requested  Bird  to  procure  the  money  he  was  to  advance,  and  to 
execute  securities  to  him,  defendant,  for  the  one-third  part  of 
what  was  still  to  be  paid,  when  Bird  placed  in  his  hands  $60, 
and  stated  he  would  endeavor  to  fulfill  his  part  in  August. 

In  consequence  of  Bird's  ftiilure,  defendant  was  compelled 
to  advance,  during  the  month  of  July,  about  $700, 
*for  necessary  repairs,  and  current  expenses.  On  the  [*367] 
fUh  day  of  September,  1840,  he  called  on  Bird  again,  to 
fulfill  the  articles  of  agreement  between  them  of  May  16th, 
when  Bird  stated  it  was  out  of  his  power  to  raise  the  money, 
or  procure  the  necessary  sureties;  to  which  defendant  replied 
that  he  must  perform  on  his  part,  or  relinquish  any  interest  he 
might  claim  to  have  in  the  proposed  copartnership  and  mail 
contract.  In  the  month  of  September,  defendant  had  to  raise, 
and  expend  in  the  business,  about  $900  more,  in  cash;  and  in 
the  last  of  September,  or  beginning  of  October,  he  called  twice 
on  Bird  to  fulfill  his  agreement,  when  Bird  stated  he  was  unable 
to  do  so,  and  that  defendant  must  take  the  business,  and  do  the 
best  he  could  with  it;  and  he  then  relinquished,  and  gave  up 
to  "defendant  all  his  interest  in  the  business; — never  afterwards 
made  any  attcm})t  to  fulfill  his  part  of  the  articles  of  agreement; 
— never  advanced  any  money  or  executed  any  securities,  or 
pretended  to  have  any  interest  in  the  business. 

YoL.  I.— 22  337 


368  CASES  IT  CHAE"CEEY. 

Bird  V.  Hamilton. 

It  was  not  proposed  to  borrow  money  on  tlie  credit  of  the 
company  to  stock  the  road,  nor  was  any  borrowed  on  the  credit 
of  the  company;  but  the  whole  capital  was  furnished  as  above 
stated.  The  business  was  not  carried  on  in  the  name,  and  for 
the  benefit  of  Bird  and  Hamilton.  Defendant  denies  the  firm 
ever  had  an  existence,  or  that  Bird  ever  expended  any  money 
in  the  business.  The  sixty  dollars  had  not  been  returned  to 
Bird.  There  was  a  replication  to  the  answer,  and  testimony 
was  taken  which  it  is  unnecessary  to  state,  as  it  sufficiently 
appears  in  the  opinion  of  the  Court. 

A.  D.  Fraser,  for  complainant. 
J.  F.  Joy^  for  defendant. 

[*368]  ^The  Chancelloe.  That  part  of  the  answer  in  which 
defendant  says  Bird  relinquished  to  him  all  his  interest 
in  the  business,  is  not  responsive  to  the  bill;  and,  as  it  has  not 
been  proved,  must  be  thrown  out  of  the  case  altogether. 

It  is  insisted  however,  on  the  part  of  defendant,  that  the 
articles  of  ^agreement  of  May  sixteenth,  did  not  constitute  a 
partnership,  and  should  be  regarded  only  as  a  contract  for  a 
copartnership  to  commence  infuturo.  That  tlie  furnishing  of 
capital  by  the  respective  parties,  in  tlie  proportion  stipulated 
by  the  articles,  was  a  prerequisite  to  the  commencement  of  the 
partnership.  That  neither  party  was  bound  to  furnish  his  pro- 
portion of  stock,  unless  the  other  was  ready  and  offered  to  fur- 
nish his;  and  that  Bird  never  furnished  any  part  of  the  capital 
employed  in  the  business,  or  was  acknowledged  by  Hamilton 
as  a  partner. 

The  agreement  of  May  sixteenth  did  not,  of  itself,  create  a 
partnership.  It  was  a  contract  for  a  partnership  to  be  formed 
between  the  parties  on  the  first  day  of  July  following.  The 
language,  "It  is  therefore  agreed  to  enter  hereby  into  j)artner- 
ship,"  imports  a  partnership  in  lyi-'oesenti^  but  no  rule  of  con- 
struction is  better  settled,  than  that  the  intention  of  the  parties 
to  an  instrument,  when  that  intention  is  apparent  from  the 
whole  instrument,  and  not  repugnant  to  any  rule  of  law,  will 
338 


FIRST  CIRCUIT,  MARCH,  1844.  309 

Bird  V.  Hamilton. 

control  tlie  meaniiif^  of  a  particular  word,  or  phrase,  unguard- 
edly used,  and  seeming  to  indicate  a  diflerent  intention.  Jack- 
son V.  Myers,  3  J.  R.  388;  Jackson  v.  Clark,  id.  424;  Ives  v. 
Ives,  13  J.  R.  235.  It  is  the  intention  of  tlie  parties,  rather  than 
the  language  employed  to  express  their  intention,  that  "courts 
chief! J  regard. 

On  the  sixteenth  day  of  May,  1840,  the  parties  agreed  to 
hecome  partners,  in  a  contract  with  the  government  for  the 
transportation  of  the  mail  between  Niles  and  Chicago, 
"■^in  four-horse  post-coaches,  for  two  years,  commencing  [*369] 
on  the  first  day  of  July  of  that  year,  and  in  the  transpor- 
tation of  passengers  in  connection  with  the  mail.  Bird  was  to 
furnish  one-third  of  the  capital  or  stock  necessary  for  the  busi- 
ness, and  Hamilton  two-thirds;  and  the  i^rofit  and  loss  were  to 
be  divided  between  them  in  the  same  ratio.  The  business  of 
the  partnership  could  not  be  entered  upon  until  the  first  of 
July.  It  was  to  commence  on  that  day.  It  seems,  therefore, 
but  reasonable  that  the  parties  intended  the  partnership  to 
commence  on  that  day,  and  not  before.  The  business  required 
a  large  capital  in  horses,  coaches,  harness,  &c.,  to  be  furnished 
by  the  parties;  but  when  was  this  capital  to  be  furnished?  The 
articles  of  agreement  do  not,  in  express  terms,  fix  any  particu- 
lar tiine,  and  yet  there  can  be  no  doubt  it  was  not  to  be  fur- 
nished immediately,  or  before  it  was  wanted  for  carrying  into 
execution  the  contract  with  the  government;  neither  was  the 
partnership  to  commence  until  that  time. 

If  this  construction  of  the  articles  of  agreement  be  correct,  it 
follows,  that  either  party  had  a  right  to  require  the  other  to 
furnish  his  portion  of  capital,  as  a  sine  qiia  nan  to  the  forma- 
tion of  the  ])artnership.  Did  Bird  furnish  his  part  of  the  capi- 
tal, or  was  it  waived  by  Hamilton?  The  case  must  turn  upon 
the  answer  to  be  given  to  these  questions. 

The  contract  with  government  for  carrying  the  mail,  and 
with  Gilbert  and  Eaton  for  the  two  coaches,  I  do  not  consider 
partnership  contracts,  for  there  was  no  partnership  then  in 
existence.  These  contracts  were  entered  into  about  the  first 
of  June,  and  must  be  regarded  as  joint  contracts  made  by  the 

339 


370  CASES  m  CIIAK"CERY. 

Bird  V.  Hamilton, 

parties,  not  as  partners,  but  in  their  individual  capacity,  with 
a  view  to,  and  for  the  benefit  of,  the  partnership  subsequently 

to  be  formed.  By  them  neither  party  contributed  any- 
[*370]  thing  as  capital.     Bird  had  no  ^exclusive  interest  in 

the  mail  contract,  which  was  not  consummated  until 
June  first,  and  after  Hamilton  had  agreed  to  become  a  joint 
contractor  with  him,  Neither  did  he  pay,  or  agi*ee  to  pay,  for 
the  coaches  purchased  of  Gilbert  and  Eaton,  with  his  own 
money,  but  gave  them  a  draft  on  moneys  to  be  received  by  the 
future  partnership  for  carrying  the  mail.  He  consequently 
contributed  nothing  as  stock  to  the  partnership,  by  the  part  he 
took  in  those  contracts. 

If  I  am  correct  in  the  view  I  have  taken  of  these  contracts, 
Bird  never  furnished  any  capital  whatever,  unless  the  sixty 
dollars  he  handed  to  Hamilton  are  to  be  considered  in  that 
liglit,  and  of  that  I  shall  have  occasion  to  speak  hereafter. 
Hamilton  furnished  sixteen  horses  and  one  coach,  worth  to- 
gether $1,280,  and  purchased  the  stock  of  Overton  &  Co,  for 
$6,387,  one  quarter  of  which  he  paid  in  cash,  and  secured  the 
balance  in  six,  nine,  and  twelve  months.  The  contract  with 
Overton  &  Co.  was  made  by  Hamilton  in  his  own  name,  but 
was  intended  at  the  time  for  the  benefit  of  Bird  as  well  as  him- 
self, on  his  paying  his  third  of  what  was  to  be  paid  down,  and 
securing  his  third  of  tlie  payments  on  which  credit  was  to  be 
given.  This  Bird  fails  to  do,  and  Hamilton  had  to  make  the  first 
payment  ont  of  his  own  funds,  and  to  get  two  friends  to  become 
his  sureties  for  the  future  installments. 

Bird  was  at  ISTiles  on  the  first  of  July.  He  went  there  at  the 
request  of  Hamilton,  but  he  was  not  then,  or  at  any  other  time, 
ready  to  perform  his  part  of  the  contract  between  Overton  & 
Co.  and  Hamilton ;  which  was  to  be  consummated  on  that  day. 
He  appears  to  have  taken  an  interest  in  the  business  at  that 
time,  and  he  undoubtedly  then  hoped  soon  to  be  able  to  per- 
form on  his  part.     Hamilton  appears  to  have  indulged  a  like 

hope,  for  he  afterwards  applied  to  him  repeatedly  for  that 
[*371]  purpose;  and  the  *books,  for  something  like  thirty  days, 

until  Hamilton  lost  all  hopes  of  his  ever  performing, 

340 


FIRST  CIRCUIT,  MARCH,  1844.  372 

Bird  V.  Hamilton. 

were  kept  in  the  name  of  Bird  and  Hamilton,  Lut  after  that,  in 
the  name  of  Hamilton  alone.  This  circumstance  shonld  not 
he  used  to  the  disadvantao;e  of  Hamilton.  It  should  not  be 
construed  into  a  waiver  of  the  agreement  requiring  Bird  to 
furnish  a  third  of  the  capital.  To  give  such  a  construction  to 
what  was  intended  as  a  favor  to  Bird,  and  nothing  more — that 
is,  to  permit  him  to  reap  the  benefits  of  a  contract,  by  per- 
forming on  his  part,  after  the  time  for  that  purpose  had 
ela])sed, — would  be  hard  indeed,  and  saying  to  persons  here- 
after, in  like  circumstances,  show  no  indulgence  whatever  to  a 
defaulting  party,  or  it  will  be  construed  into  a  waiver  of  your 
rights. 

There  is  no  evidence  of  a  waiver,  and  it  certainly  should  not 
be  imjDlied  from  slight  circumstances.  It  is  hardly  reasonable 
to  suppose  Hamilton  intended  to  give  Bird  the  benefit  of  his 
services,  and  of  the  §8,000  capital  invested  by  him  in  the  busi- 
ness. The  complainants  seem  to  have  been  aware  of  this  diffi- 
culty, for  they  state  in  their  bill  the  parties  were  to  borrow 
money  on  the  credit  of  the  firm,  to  stock  the  road,  and  to  repay 
it  from  their  receipts;  and  that  money  was  actually  borrowed 
by  them  for  that  purpose.  The  answer  positively  denies  any 
such  understanding,  or  that  any  money  was  borrowed  by  the 
firm.  And  this  allegation  of  the  bill  is  unsupported  by  testi- 
mony, except  the  evidence  of  Lorenzo  Dow  Bird,  who  says 
there  was  an  understanding,  or  agreement,  that  the  money  neces- 
sary for  the  Jirst  payment  should  be  borrowed  on  the  credit  of 
the  firm ;  and  he  thinks  some  three  hundred  dollars  were  bor- 
rowed of  a  bank  in  Jackson.  The  witness  is  not  positive  any 
money  was  borrowed;  he  thhiks  it  M'as  borrowed;  and  the 
agreement  or  understanding  to  which  he  testifies  is  not 
only  denied  by  the  answer,  but  is*in  direct  contravention  [*372] 
to  the  articles  of  agreement,  which  speak  of  capital  or 
stock,  and  not  of  credit. 

Hamilton  gave  receipts  in  the  name  of  Bird  and  Hamilton, 
for  the  mail  money,  from  time  to  time,  as  it  became  due,  and 
they  are  adduced  as  evidence  of  a  partnership.  Hamilton  and 
Bird,  as  already  stated,  were  joint  contractors  for  carrying  the 

341 


CASES  IN  CHANCERY 


Bird  V.  Hamilton. 


mail.  Suppose  Bird,  after  making  the  contract,  had  refused  to 
have  anything  to  do  with  carrying  the  mail,  and  Hamilton,  as 
he  was  equally  liable  with  Bird  for  a  non-performance  of  tlieir 
contract,  to  save  himself,  had  gone  on  and  fulfilled  the  contract 
with  the  government;  would  he  not  have  been  entitled  to  the 
mail  money?  '  And  would  he  not  have  given  receipts  in  the 
name  of  Bird  and  Hamilton?  The  case  supposed  is  the  one 
before  the  Court,  if  Bird,  by  reason  of  his  failure  to  comply 
with  the  articles  of  agreement,  was  not  a  partner  with  Ham- 
ilton. 

As  to  the  sixty  dollars,  Hamilton  did  not  receive  it  as  per- 
formance of  the  articles  of  agreement  by  Bird,  who,  at  the 
time  he  paid  it,  promised  to  pay  the  balance  of  his  share  of  the 
first  payment,  and  to  furnish  his  part  of  the  securities.  It  was 
not  intended  by  the  parties  to  secure  the  rights  of  Bird  under 
the  articles,  unless  the  promise  made  at  the  same  time  was 
afterwards  performed. 

The  question  is  one  of  partnership  between  the  parties  them- 
selves, and  not  as  to  third  persons.  Individuals,  who  are  not 
23artners  in  fact,  are  sometimes  liable  as  partners  to  third  per- 
sons, on  account  of  holding  themselves  out  to  the  world  as 
partners.  But  that  is  not  the  question  in  the  present  case, 
which  is  one  of  partnership  between  the  parties;  and,  when 
that  is  the  case,  the  agreement  out  of  which  the  supposed  part- 
nership arises,  is  to  be  construed  as  any  other  agreement  be- 
tween the  same  parties. 

The  present  case  is  not,  I  confess,  without  its  difiicul- 
[*373]  ties.*  It  is  peculiar  in  many  of  its  features,  but,  after 
the  best  consideration  I  have  been  able  to  give  it,  I 
am  of  opinion  that  Bird  and  Hamilton  were  not  partners  un- 
der the  articles  of  agreement  of  May  sixteenth,  by  reason  of 
Bird's  failure  to  furnish  his  share  of  the  stock.  McGraw  v. 
Pulling^  1  Fi'eeman  K.  357. 

Bill  dismissed,  but  without  costs,  as  complainants  are  execu- 
tors, and  appea]'  to  have  acted  in  good  faith  in  bringing  their 
suit. 

342 


FIRST    CIECUIT,  MAIlCir,  1S44.  374 


Carroll  t'.  Rice. 


Charles  H.  Carroll  v.  Randall  S.  Rice,  Adminis- 
trator OF  THE  Estate  of  Nehemiah  O.  Sar- 
geant,  deceased,  tlie  president,  directors  and 
Company  of  the  Farmers'  and  Mechanics'  Bank 
OF  Michigan,  John  A.  Welles,  Catharine  C. 
Sargeant  and  Lucius  Lyon  Sargeant. 

Fraud  \atiates  all  contracts,  at  the  election  of  the  party  injured  ;  but  he  must 
make  his  election  on  the  discovery  of  it,  or  within  a  reasonable  time  there- 
after, whether  he  will  rescind  the  contract,  or  consider  it  good,  and  resort 
to  an  action  on  the  case  for  damages. 

if  the  condition  of  the  property  has  be:m  so  changed  that  the  parties  cannot 
substantially  be  placed  back  where  they  were  before  the  sale,  the  vendee 
must  seek  redress  by  an  action  on  the  case. 

A  party  seeking  to  set  aside  a  convej^ance  on  the  ground  of  fraud,  must  be 
prompt  in  communicating  the  fraud  when  discovered,  and  consistent  in 
his  notice  of  the  use  he  intends  to  make  of  it.^ 

In  a  suit  brought  to  set  aside  a  bond  and  mortgage  for  purchase  money,  on 
the  ground  of  fraud,  the  mortgagee  being  dead,  and  his  estate  insolvent 
unless  the  bond  should  be  paid,  the  Court,  although  it  refused,  under  the 
circumstances  of  the  case,  to  rescind  the  contract,  retamed  jurisdiction 
under  the  general  prayer  of  the  bill,  on  the  ground  that  it  could  give 
more  full  relief  than  a  court  of  law,  and  awarded  an  issue  to  ascertain  the 
damage  which  complainant  had  sustained  by  reason  of  the  alleged  fraud.^ 

■"This  was  a  bill  to  rescind  a  sale  of  real  estate,  &c.  [*374] 
The  facts  necessary  to  an  nnderstandini^-  of  the  several 
points  decided,  are  stated  in  the  opinion  of  the  Court. 

^See  as  to  laches,  Street  v.  Dow,  Harr.  Oh.  427  ;  McLean  r.  Barton,  id., 
279  ;  Campau  v.  Van  Dyke,  15  Mich.,  378  ;  De  Armand  r.  Phillips,  ante, 
186  ;  Schwarz  v.  Wendell,  ante,  268  ;  Boyce  v.  Danz,  29  Mich.,  146  ;  Russell 
r.  Miller,  26  id.,  1  ;  Case  v.  Case,  26  id.,  484  ;  I\Iiller  v.  Thompson,  lU 
id.,  10. 

■^  As  to  where  jurisdiction  for  one  purpose  Avill  be  retained  for  another,  see 
Brown  v.  Gardner,  Harr.,  Ch.  291  ;  Whipple  r.  Farrar,  3  Mich.,  4o6  ;  Haw- 
kins I'.  Clermont,  15  id.,  511  ;   Miller  v.  Stepper,  o2  id.,  194. 

343 


375  CASES  IN  CHANCERY. 

Carroll  r.  Rice. 

A.  D.  Fraser  da  T.  Rorneyn,  for  complainants,  contended 
that  the  contract  between  the  complainant  and  Sargeant  was 
vitiated  by  the  fraud  of  Sargeant  in  his  assurances  concerning 
the  property.  That  misrepresentation  or  concealment  in  regard 
to  material  facts,  entitles  the  injured  party  to  have  the  transac- 
tions set  aside,  whether  the  part}^  making  the  misrepresentation 
knew  it  to  be  false,  or  made  his  statements  without  knowing 
whether  they  were  true  or  not,  a  person  selling  land  being 
presumed  to  know  the  correctness  of  his  representations.  The 
title  failing  to  part  of  the  land,  the  whole  sale  will  be  rescinded. 

Complainant  is  entitled  to  payment  for  his  improvements, 
and  is  liable  only  for  the  actual  rents  and  proiits.  Lapse  of 
time  is  no  bar  to  the  relief  sought,  as  the  right  to  it  does  not 
arise  completely  until  discovery. 

H.  N.  Walker,  and  E.  Faryisioorth,  Attorney  General,  for 
defendants. 

There  was  no  such  fraud  or  misrepresentation  on  the  part  of 
Sargeant,  as  to  the  situation,  extent,  and  value  of  the  property, 
as  would,  if  not  excused,  authorize  this  Court  to  annul  the 
contract,  and  compel  the  defendants  to  refund  the  money 
already  paid.  It  must  appear  not  only  that  there  were  misrejD- 
resentations,  but  that  the  party  was  misled  by  them. 

Complainant  has  waited  too  long.  The  condition  of  the 
property  is  so  changed,  that  the  parties  cannot  be  replaced  in 
statu  quo.  A  party  seeking  to  set  aside  a  conveyance  on  the 
ground  of  fraud,  must  be  prompt  in  communicating  it,  when 
discovered,  and  consistent  in  his  notice  to  the  opposite 
[*3T5]  party  of  the  use  he  intends  to  make  of  it.  He  *must  not 
keep  the  property,  to  wait  the  chances  of  profit,  and  dis- 
avow the  contract  when  it  proves  a  bad  bargain. 

The  Chancellor.  On  the  28th  of  July,  1836,  Carroll  pur- 
chased of  Nehemiah  O.  Sargeant  his  interest  in  the  village  of 
Kent,  at  the  Tlaj)ids  of  Grand  Hiver.  Sargeant  and  Lucius 
Lyon  were  at  tliat  time  joint  proprietors  of  a  large  part  of  the 
village  plat,  and  had  made,  and  were  then  engaged  in  making 
344 


FIRST  CIRCUIT,  MARCH,  ISU.  376 

Carroll  v.  Rice. 


divers  iinin'ovements,  and  were  the  owners  of  considerable  per- 
sonal property,  connected  with  their  village  speculation,  as 
materials  for  building,  teams,  and  instruments  for  the  construc- 
tion of  a  canal  then  in  jjart  completed,  and  the  like.  They 
were  also  parties  to  various  contracts  for  the  sale  of  village 
lots,  and  the  joint  holders  of  bonds  and  mortgages,  given  for 
village  property  sold  by  them.  Carroll  was  to  take  Sargeant's 
interest  in  the  village  speculation,  to  succeed  to  all  his  rights, 
and  assume  all  his  liabilities,  and  to  pay  Sargeant  $83,000, — 
viz:  $5,000  in  cash,  $18,000  by  a  draft  at  ninety  days  on  the 
Phoenix  Bank  in  the  city  of  ISTew  York,  and  $60,000  in  twelve 
annual  installments  of  $5,000  each,  with  interest  on  each  install- 
ment when  paid.  The  necessary  papers  were  executed,  and 
possession  was  taken  of  the  property  by  Carroll.  Sargeant 
died  in  September,  1838,  and  defendant.  Rice,  was  appointed 
administrator  of  his  estate.  In  April,  18-10,  Carroll  filed  his 
bill  in  this  Court  against  Rice,  the  administrator,  Catharine  C. 
Sargeant,  the  widow,  and  Lucius  Lyon  Sargeant,  the  only  child, 
and  heir  at  law,  a  minor  under  the  age  of  twenty-one  years,  to 
have  the  sale  of  July  twenty-eighth  rescinded  and  the  securities 
given  for  the  purchase  money  delivered  up  and  canceled,  and 
to  be  repaid  with  interest  Mdiat  he  had  paid  toward  the  pur- 
chase, on  the  ground  of  fraud  in  Sargeant,  in  misrepre- 
senting the  condition  and  ^situation  of  the  property  at  [*376] 
the  time  of  the  purchase;  Carroll  offering  to  account 
for  all  sales  made  by  him. 

The  bill  alleges,  Sargeant  misrepresented  the  property,  in 

the  following  particulars,  to  induce  complainant  to  purchase  it. 

First.  The  depth  of  the  water  in  Grand  River  both  above 

and  below  the  Rapids,  at  which  point  the  village  of  Kent  is 

situated,  and  the  facilities  the  river  afforded  for  navigation. 

Second.  That  the  river  did  not  overflow  its  banks  at  the  vil- 
lage, in  the  time  of  freshet. 

Third.  The  cost  of  completing  the  canal,  which  was  in  an 

unfinished  state,  and  which,  when  completed  as  laid  down  on  the 

village  plat, was  to  extend  from  the  head  to  the  foot  of  the  Rapids, 

Fourth.  The  average  head  and  fall  of  the  water  power  that 

345 


CASES  m  cHx\:n"cery. 


Carroll  v.  Rice. 


would   be  created  by  the  canal,  whicli  lie  represented  to  be 
twelve  feet. 

Fifth.  The  amount  of  moneys  due  on  contracts,  for  village 
property  sold. 

Sixth.  The  effect  of  the  delivering  np  of  a  contract  to  John 
P.  Calder,  executing  to  him  a  deed,  and  taking  back  a  mort- 
gage, which  was  done  by  Sargeant,  had  upon  the  interests  or 
rights  of  complainant. 

Seventh.  The  quantity  of  building  materials  that  had  been 
provided  for  building  a  mill  and  tavern  house,  the  progress 
that  had  been  made  in  framing,  what  is  called  by  the  witnesses, 
the  mammoth  mill,  and  that  machinery  for  it,  to  a  large 
amount,  had  been  ordered  and  paid  for. 

Eighth.  The  interest  he  had  in  two  islands  in  Grand  River, 
to  which  he  said  he  had  a  good  title,  and  which  were  a  part  of 
the  property  purchased  by  Carroll. 

Other  misrepresentations  are  also  alleged  in   the  bill,  rela- 
tive  to   the   property  being  unincumbered;  relative  to 
[*3T7]  ^steamboat  stocks;  to  the  building  of  steamboats  to  run 
to  and  from  the  village;  to  the  location  of  a  land  office 
at  the  village  by  the  United  States  government;  to  a  mail  con- 
tract, and  the  like. 

The  bill  further  states  a  failure  of  title  to  a  saw-mill  and  ■ 
water  power,  conveyed  in  connection  with,  and  as  appertain- 
ing to  lot  number  one,  on  the  Campau  plat.  It  also  charges  a 
mistake  in  drawing  the  deed  conveying  the  real  estate,  in  de- 
scribing the  interest  conveyed  in  lot  number  twenty-five,  on 
what  is  called  the  lower  fraction,  to  be  an  undivided  half,  in- 
stead of  the  whole  of  said  lot. 

It  is  seldom  a  case  so  complicated  in  its  details,  and  in  which 
so  little  regard  has  been  had  to  common  honesty  and  fair  deal- 
ing, if  we  take  complainant's  bill  to  be  true  in  all  its  parts,  is 
presented  to  a  court  of  equity  for  adjudicaticm.  It  also  strikes 
the  mind  as  not  a  little  singular,  that  complainant  should  have 
lain  by  nearly  four  years,  before  filing  his  bill.  I  can  account 
for  the  delay  only  in  this  wise:  Supposing  he  had  made  a  good 
bargain,  he  was  unwilling  to  relinquish  it,  on  account  of  the 

346 


FIRST  CIRCUIT,  MARCH,  1844.  378 

Carroll  r.  Rice. 

fraud,  until  tlie  change  in  the  times  had  stripped  the  property 
of  its  fictitious  value,  and  turned  what  at  first  appeared  to  be  a 
very  good  bargain,  into  a  very  hard  one. 

Fraud  vitiates  all  contracts,  at  the  election  of  the  party  in- 
jured; but  he  must  make  his  election  on  the  discovery  of  it, 
or  within  a  reasonable  time  thereafter,  whether  he  will  rescind 
the  contract,  or  consider  it  a  good  and  subsisting  contract,  and 
seek  redress  for  the  injury  he  has  sustained  by  an  action  on  the 
case  for  the  deceit.  The  injured  party  may  pursue  either 
course,  on  the  discovery  of  the  fraud,  provided  tlie  property  is 
in  a  situation  to  be  restored  to  the  vendor,  in  the  condition  it 
was  in  when  he  parted  with  it,  or  the  change  that  has  taken 
place,  if  any,  has  arisen  from  the  use  of  the  property, 
and  is  too  slight  of  itself  to  *materially  affect  its  value.  [*378] 
If  the  change  is  so  great  that  the  parties  cannot  sub- 
stantially be  placed  back  where  they  were  before  the  sale,  the 
vendee  must  seek  redress  by  an  action  on  the  case  for  his  dam- 
ages. 

In  Boyce's  Executors  v.  Grundij^  3  Pet.  R.  215,  Mr.  Justice 
Johnson,  who  delivered  the  opinion  of  the  Court,  says:  "That 
a  party  is  bound  to  be  prompt  in  communicating  the  fraud 
when  discovered,  and  consistent  in  his  notice  to  the  opposite 
party  of  the  use  he  proposes  to  make  of  the  discovery,  cannot 
be  questioned."  And,  in  Jones  v.  Dishrow,  the  principle  so 
clearly  laid  down  by  Mr,  Justice  Johnson  was  recognized  in 
this  Court,  by  Chancellor  Farnsworth.  Harr.  Ch.  R.  102.  It 
is  in  itself  so  reasonable,  the  injured  party,  having  two  reme- 
dies, either  of  which  he  may  pursue,  but  not  both,  and  it  so 
strongly  commends  itself  to  the  common  sense  of  every  man, 
as  to  need  no  labored  argument  in  its  support.  The  difficulty, 
as  is  the  case  with  most  legal  principles,  consists  in  its  applica- 
tion; and  the  circumstances  of  each  case  must  furnish  the 
Court  with  a  key  for  that  purpose. 

In  Jones  v.  Dlshrow,  but  a  few  months  had  elapsed  atter  the 
discovery  of  the  fraud,  before  steps  were  taken  to  rescind  the 
contract;  and  yet  the  Chancellor  in  that  case  said,  Disbrow 
should  at  once,  on  the  discovery  of  the  fraud,  have  given  notice 

347 


379  CASES  IN  CHANCERY. 

CaiToU  V.  Rice. 

of  liis  intention  to  recede  from  tlie  contract.  In  the  present 
case,  assuming  the  several  charges  of  fraud  to  be  fully  made 
out  by  the  testimony,  not  only  months,  but  years,  were  allowed 
to  pass,  after  complainant  was  chargeable  with  notice  of  most, 
if  not  all  the  frauds  of  which  he  complains,  before  any  steps 
were  taken  to  rescind  the  contract.  The  first  steps  were  to  file 
his  bill  in  this  Court.     This  was  the  first  notice  defendants  had 

of  the  alleged  frauds,  and  of  complainant's  intention  to 
[*3T9]  rescind  the  contract.    Sargeant  did  not  die  until  *Septem- 

ber,  1838; — two  years  and  more  after  the  sale; — and  yet 
it  does  not  appear  Carroll  ever  complained  to  him  of  the  sale 
of  the  property.  On  the  contrary,  as  late  as  February,  1838, 
eighteen  months  after  the  sale,  a  payment  of  between  five  and 
six  thousand  dollars  was  made  to  Sargeant,  on  complainant's 
bond  and  mortgage  for  the  $60,000, 

When  were  the  alleged  frauds  discovered?  "When  came  they 
to  the  knowledge  of  complainant,  or  his  agents,  (for  notice  to 
them,  I  hold,  under  the  circumstances  of  the  case,  was  notice 
to  him,)  who  had  cliarge  of  the  property,  and  were  carrying 
on  improvements,  and  selling  lots  for  him?  The  bill  does  not 
state.  It  appears  from  the  testimony,  however,  that  Almy  & 
Richmond,  Carroll's  agents,  were  in  Sargeant's  employ  at  the 
time  of  the  purchase,  and  had  been  for  a  long  time  previous. 
Almy  was  the  engineer  who  drafted  the  village  plat,  a  litho- 
graphic copy  of  which  w^as  exhibited  to  Carroll,  showing  the 
location  of  the  property,  and  the  proposed  canal,  and  contain- 
ing a  statement  of  the  water  power,  and  the  class  of  vessels 
that  could  navigate  the  river,  both  above  and  below  the  Rapids. 
Almy  and  Richmond  were  present  at  the  different  interviews 
between  the  parties,  when  they  were  bargaining  for  the  prop- 
erty. They  are  the  principal  witnesses  to  the  fraudulent  rep- 
resentations made  by  Sargeant,  and  being,  as  they  were,  ac- 
quainted with  the  property,  from  their  previous  employment 
by  Sargeant  and  Lucius  Lyon,  (Lyon  being  a  joint  proprietor 
with  Sargeant,)  in  keeping  their  books,  selling  lots,  and  other- 
wise aiding  and  assisting  the  proprietors  in  building  up  their 
village,  and,  after  the  sale,  continuing  in  the  business  as  the 

348 


FIRST  CIRCUIT,  MARCH,  1844.  380 

CaiToll  V.  Rice, 

aii;ents  of  Carroll,  they  must,  from  tlie  very  nature  of  their 
crnj^loyment,  have  discovered  in  a  very  short  time  the  falsity 
of  Sargeant's  representations,  had  they  previously  had  no 
^'knowledge  on  the  subject.  But  Almy,  at  the  time  of  [*3S0] 
the  sale,  as  he  states  in  his  testimony,  knew  that  the 
village  plat  on  its  face  misrepresented  the  navigableness  of  the 
river,  the  depth  of  the  water  below  the  rapids,  and  the  average 
head  and  fall  of  the  water  power  to  be  created  by  the  canal. 
He  knew  Sargeant's  statement  of  the  amount  it  would  cost 
to  finish  the  canal  to  be  incorrect.  Sargeant,  he  states,  also 
knew  it,  and  that  nearly  the  whole  of  the  unfinished  part  of  the 
canal  would  be  rock  excavation,  which  did  not  appear  from  the 
surface  of  the  ground.  Of  all  the  alleged  misrepresentations, 
I  consider  those  relating  to  the  canal,  the  water  power,  and  the 
navigableness  of  the  river,  the  most  important. 

The  other  misrepresentations  were  of  such  a  nature,  that 
they  could  not  be  kept  concealed  from  Almy  and  Richmond 
any  great  length  of  time.  I  refer  to  the  inundation  of  a  part 
of  the  village  by  freshets  ;  the  public  highway  passing  diagon- 
ally through  a  number  of  blocks  and  injuring  the  lots,  of 
which  they  must  have  known  at  the  time;  the  amount  of 
moneys  due  on  the  contracts  assigned;  the  quantity  of  build- 
ing materials;  payments  for  machinery  ordered  for  the  mam- 
moth mill;  and  the  like. 

Much  was  said  on  the  aro^umcnt  about  the  Lvon  mort£ra<res. 
Almy  had  notice  of  them  as  early  as  the  spring  of  1838;  which 
was  two  years  before  the  bill  was  filed.  Lyon,  it  appears,  was 
at  one  time  the  sole  proprietor  of  a  part  of  the  real  estate,  in 
which  an  undivided  interest  was  conveyed  by  Sargeaiit  to  Car- 
roll; and,  while  owning  the  whole  interest,  executed  the  mort- 
gages referred  to,  and  then  sold  an  undivided  half  of  the 
mortgaged  premises  to  Sargeant.  Lyon  states  in  his  testi- 
mony, the  whole  property  mortgaged,  including  improvements, 
is  worth  from  $GO,000  to  $65,000;  and  that  the  amount  due  on 
rhe  mortgages  is  between  $8,000  and  $9,000.  On  a  fore- 
closure *Lyon's  half  would  be  decreed  to  be  first  sold,  [*381] 
and  there  can  be  no  doubt  it  would  l)ring  enough  to  pay 

349 


382  CASES  m  CIIxiXCEKY. 

Carroll  v.  Rice. 

the  mortgages,  without  resorting  to  Carroll's  half  for  that  pur- 
pose. Still,  it  must  be  admitted,  the  mortgages  would  be  likely 
to  prevent  that  ready  sale  of  lots,  which  Carroll  must  have  had 
in  view  when  he  purchased.  But  Sargeant's  statement  ex- 
tended only  to  his  interest  in  the  property;  and  the  difficulty 
alluded  to  would  have  been  experienced,  more  or  less,  had  the 
mortgages  been  limited  to  Lyon's  half  only.  In  that  case,  the 
purchaser  of  a  lot  would  have  to  take  an  undivided  half  of  it 
subject  to  the  mortgages,  unless  a  release  could  be  obtained 
from  the  mortgagee. 

If  Carroll,  on  discovering  these  mortgages,  intended  to  make 
them  a  ground  for  rescinding  the  sale,  he  should  have  filed  his 
bill  immediately.  By  a  change  in  the  times,  the  property  had 
greatly  decreased  in  value  during  the  four  years  he  held  on  to 
the  bargain,  and  he  should  not  now  be  allowed  to  throw  the  loss 
on  Sargeant's  representatives,  who  would  not  have  been  bene- 
fited by  an  increased  value.  Moreover,  the  property  cannot  be 
restored  in  the  condition  it  was  in  when  the  mortgages  were 
discovered,  much  less  when  it  was  purchased  by  Carroll.  For 
these  reasons,  I  think  the  sale  should  not  be  set  aside.  But 
relief  may  be  given  to  complainant  in  another  way,  under  the 
general  prayer  of  the  bill.  His  damages,  when  ascertained, 
may,  by  a  decree  of  the  Court,  be  directed  to  be  endorsed  as  so 
much  paid,  on  his  bond  for  the  purchase  money  in  the  hands 
of  the  administrator. 

Sargeant's  estate  is  insolvent,  unless  the  whole  amount  due  on 
the  bond  is  collected.  If,  then,  complainant  has  sustained  dam- 
ages to  a  large  amount,  in  consequence  of  the  alleged  frauds, 
(and  he  has  adduced  evidence  to  that  effect,  and  it  is  my  inten- 
tion to  send  the  question  to  a  jury,)  this  Court  can  give 
[*382]  more  full  relief  than  he  can  obtain  *at  law.  Besides, 
two  actions  at  law  would  be  necessary; — an  action  on 
the  case  for  the  deceit, — and  of  covenant  on  the  warranty,  for 
the  failure  of  title  to  the  saw-mill  and  water  power,  conveyed 
with,  and  as  part  of  lot  number  one,  on  the  Campau  j)lat; — 
and  still  leave  the  question  of  mistake,  for  it  is  nothing  more, 
in  the  conveyance  of  lot  twenty-three  on  the  lower  fraction,  to 

350 


FIRST  CIECUIT,  MAECIl,  1844.  383 

Ciirroll  r.  Rice. 

be  settled  in  tliis  Court,  slionld  the  deed  be  construed  to  con- 
vey an  undivided  half  only,  instead  of  the  whole  lot. 

I  shall  therefore  direct  a  case  to  be  made,  and  sent  to  the 
Circuit  Court  of  Kent  county  for  trial;  putting  in  issue  the 
several  questions  of  fraud  charged  in  the  bill,  and  to  assess 
complainant's  damages  on  account  thereof,  witl*  interest  from 
the  time  of  the  purchase; — the  location  of  the  land  office,  and 
the  high  price  of  lumber,  and  the  profits  to  be  made  from  man- 
ufacturing it,  to  be  left  out  of  the  case.  Sargeant's  statements 
in  relation  to  them  were  nothing  more  than  expressions  of  his 
opinion,  and  must  have  been  so  understood  by  complainant; — 
and  there  is  no  reason  for  believing  they  were  not  honestly  en- 
tertained by  him  at  the  time.  He  had  so  much  confidence  the 
land  office  would  be  located  at  the  Rapids,  he  went  to  the  ex- 
pense  of  fitting  up  buildings  for  the  accommodation  of  the 
register  and  receiver.  The  office  was  to  be  located  by  the  gov- 
ernment; and  complainant  knew  that  fact.  Sargeant  had  no 
power  over  it. 

The  case  must  also  put  in  issue  the  failure  of  title  to  the  saw- 
mill and  water  power,  conveyed  with  lot  number  one  on  the 
Campau  plat;  and  the  jury,  on  finding  this  issue  in  favor  of 
complainant,  (who  is  to  be  plaintiif  in  the  case,)  must  assess 
his  damages,  with  interest  from  the  time  he  was  deprived  of 
the  mill  and  water  power. 

The  question  of  mistake  in  the  conveyance  of  lot 
"twenty-three,  need  not  be  submitted  to  the  jury.     That  [*3S3] 
will  be  disj^osed  of  on  the  final  hearing. 

The  case  must  be  settled  by  a  Master,  if  the  parties  cannot 
ao-ree  in  makins;  it  up.  Either  partv  mav  notice  it  for  trial; 
and  either  party  on  the  trial  may  examine  any  witness  whose 
testimony  was  read  on  the  hearing,  or  read  the  deposition  of 
such  witness  if  he  be  dead.  Either  party  may  examine  new 
witnesses  and  read  the  deposition  of  any  witness  of  the  opposite 
part}'  that  was  read  on  the  hearing;  and  the  trial  must  be  by  a 
struck  jury,  if  requested  by  either  party. 


351 


584  CASES  IN  CITANCEEY. 


Thayer  v.  Swift. 


[*384]      *CiiAELES  Thayer  v.  Jason  Swift  et  al. 

It  is  the  settled  practice  of  this  Court  in  an  affidavit  of  merits,  to  require  the 
party  to  state  what  such  merits  are.^ 

^Vliere  a  party  applies  for  leave  to  take  testimony,  after  the  time  allowed  by 
the  rules  has  expired,  he  must  state  in  liis  appUcation  what  he  expects  to 
be  able  to  prove  by  the  witnesses  he  seeks  leave  to  examine. 

A  complainant  seeking  to  set  aside  the  rules  of  the  Court,  will  be  compelled  to 
make  as  strong  a  case,  as  a  defendant  to  set  aside  a  default. 

Where  complainant  had  allowed  the  time  given  by  the  rules  of  Court  to  take 
testimony  to  expire,  without  showing  any  excuse  for  neglect,  except  that 
his  counsel  were  occupied  with  other  business,  the  motion  was  denied. 

Motion  by  complainant  for  leave  to  take  testimony. 

A  replication  was  filed  to  defendant's  answer,  September 
27th,  1843,  but  no  order  was  entered  for  taking  testimony,  by 
either  party,  within  the  thirty  days  allowed  by  the  fiftieth  rule 
of  the  Court,  after  replication  filed.  Complainant  states  in  his 
affidavit,  that  he  has  a  good,  just,  and  equitable  claim,  upon  one 
or  more  of  the  defendants,  and  to  the  real  estate  mentioned  and 
described  in  the  bill  of  complaint,  and  alleged  to  have  been 
conveyed  by  Jason  Swift,  one  of  the  defendants,  for  the  purpose 
of  defrauding  complainant,  and  other  creditors.  He  also  states 
the  names  of  a  number  of  witnesses,  one  of  whom  resides  i» 
Eochester,  in  the  State  of  New  York,  all  of  whom,  lie  swears, 
are  material  in  support  of  his  claim;  and  that  he  cannot  safely 
proceed  to  a  hearing  on  tlie  merits,  without  the  testimony  of 
said  witnesses,  as  he  is  informed  \yj  his  counsel,  and  verily  be- 
lieves to  be  true.  He  further  states,  he  made  frequent  applica- 
tion,  to   both   his    solicitor    and    counsel,   to   liave   his   wit- 

^  A.n  affidavit  of  merits  should  be  made  from  affiant's  knowledge  of  the  facts 
and  not  from  information  and  belief.     Brown  v.  Co  wee,  2  Doug.,  432. 

It  should  be  made  by  the  party  himself,  or  a  reason  shown  why  not  so  made. 
Bank  of  Mich.  v.  Williams,  Harr.  Ch.,  219. 

As  to  affidavit  of  merits  to  set  aside  a  default,  see  Stockton  v.  Williams, 
Ilarr.  Ch.,  241. 

352 


SECOND  CIECUIT,  MARCH,  1844.  385 

Thayer  v.  Swift. 

iiesses  examined;  and  was  told  *by  them  they  could  not  [*385] 
attend  to  it,  within  the  time  allowed  by  the  rules  of 
Court,  in  consequence  of  other  business  they  had  to  attend  to. 
This  last  statement  is  also  verified  by  the  affidavits  of  the  soli- 
citor and  counsel. 

^.  jFarnswarth,  Attorney  General,  in  supnort  of  the 
motion. 

Ji.  S.  Wilson,  contra. 

The  Chancellor.  A  poor  excuse  is  given  for  not  entering 
the  order  to  take  testimony.  Thirty  daj^s  are  allowed  for. that 
purpose,  after  the  cause  is  at  issue  by  a  replication;  and  the 
parties  have  sixty  days  to  examine  their  witnesses  in,  after  the 
order  has  been  entered,  and  notice  given  to  the  adverse  party; 
and  the  time  may  be  enlarged  once,  on  an  ex  jxtrte  application, 
if  made  before  the  sixty  days  have  expired,  and  as  much  often- 
er,  by  giving  notice  to  the  opposite  party,  as  the  justice  and 
equity  of  the  case  may  require.  Instead  of  pursuing  this 
course,  complainant's  solicitor  adopted  one  to  suit  his  o\vn  con- 
venience; and  concluded  to  disregard  the  rules  of  Court,  and 
neglect  examining  his  witnesses,  until  he  has  time  to  attend 
to  it. 

I  do  not  think  the  excuse  sufficient.  He  was  not  taken  by 
surprise;  he  was  not  ignorant  of  the  rules  of  Court;  he  has  not 
availed  himself  of  the  first  opportunity  to  make  his  motion; 
and  complainant's  affidavit  does  not  disclose  what  he  expects 
to  prove  by  his  witness,  that  the  Court  may  judge  of  the  mate- 
riality of  the  testimony,  and  the  merits  of  the  application.  It 
is  the  settled  practice  of  this  Court,  in  an  affidavit  of  merits, 
to  require  tlie  party  to  state  what  such  merits  are.  8  Paige 
R.  130.  This  complainant  has  tailed  to  do.  He  says  he  has  a 
good  and  equitable  claim,  and  that  he  cannot  safely  proceed  to 
a  hearing,  without  the  testimony  of  the  witnesses  men- 
tioned *in  his  affidavit,  as  he  is  advised  by  his  counsel.  [*3S6] 
He  does  not  state  what  facts  he  expects  to  prove  by 
them,  that  tlie  court  may  judge  of  their  materiality.  It  is  the 
Vol.  L— 23  353 


387  CASES  IK  CHANCERY. 

Dennis  v.  Hemingway. 

established  practice,  on  applications  to  set  aside  a  default  regu- 
larly entered,  for  not  answering,  to  require  defendant  to  exhibit 
the  answer  he  proposes  to  file,  or  to  state  in  his  affidavit,  fully, 
the  merits  of  his  defense;  and,  where  complainant  has  neglected 
to  take  testimony  within  the  time  allowed  by  the  rules  of  the 
Court,  I  see  no  reason  why  he  should  not  be  required  to  make 
as  strong  a  case  to  set  aside  the  rules  of  Court,  as  the  de- 
fendant to  set  aside  a  default.  Such  has  been  the  practice.  1 
have  so  ruled  in  a  number  of  cases,  and  see  no  reason  for  de- 
parting from  it  now.  An  affidavit  of  merits  must  disclose  the 
facts,  or  what  a  party  expects  and  believes  he  will  be  able  to 
prove  by  his  witnesses.  See  Insurance  Company  v.  Day,  9 
Paige  R.  247. 
Motion  denied. 


P387J     *WiLLiAM  W.  Dennis  v.  Needham  Heming- 
way et  ux. 

No  proceeding  can  be  had  on  a  bill  for  the  foreclosure  of  a  mortgage,  if  it  ap- 
pear that  any  judgment  has  been  obtained  on  a  suit  at  law  for  the  money 
demanded  by  such  bill,  or  any  part  thereof,  unless,  to  an  execution  against 
the  property  of  the  defendant  in  such  judgment,  the  sheriff  shall  have 
returned  the  execution  unsatisfied,  in  whole  or  in  part,  and  that  defend- 
ant has  no  property  to  satisfy  the  execution  except  the  mortgaged  prem- 
ises.^ 

To  prevent  proceedings  on  a  foreclosure  bUl,  it  is  not  necessary  that  judgment 
shall  have  been  rendered  on  the  bond  or  note  accompanying  the  mortgage, 
but  for  the  money  for  which  the  mortgage  was  given. 

Demurrer  to  a  bill  of  foreclosure. 

The  bill  sets  forth  a  bond  and  mortgage  of  defendant  and 
wife  to  complainant,  dated  June  3d,  1842,  for  $235.06,  payable 
with  interest,  on  or  before  the  15tli  day  of  November  then 
next;  and  that  the  bond  and  mortgage  were  given  to  secure 

'  See  Cooper  r.  Bressler,  9  Mich.,  534. 
354 


FIKST  CIKCUIT,  MAECII,  1844.  388 

Dennis  v.  Hemingway. 

the  payment  of  $235.06  due  complainant  on  a  judgment  re- 
covered in  fjivor  of  one  Sullivan  R.  Kelsej,  against  said  ISTeed- 
liam  liemingwaj,  in  the  Circuit  Court  for  the  county  of  Oak- 
land, on  the  29th  day  of  November,  1841,  of  which  judgment 
complainant  was,  and  still  is,  the  true  and  equitable  o^vner. 
It  did  not  appear  from  the  bill  that  execution  had  Ijeen  taken 
out  on  the  judgment,  and  on  that  account  the  demurrer  was 
interposed.  » 

if.  B.  Harrington,  in  support  of  the  demurrer. 

Barstow  &  Lockwood,  contra. 

The    Chancellor.      The    bond    and    mort<]i:a2:e   were   not 
taken  in  payment  or  satisfaction  of  the  judgment,  which  is 
still  in  force,  but  as  collateral  security  for  its  payment 
*raerely.     Their  only  effect  was,  to  stay  execution  on  [*38!5] 
the  judgment,  until  the  fifteenth  day  of  November  then 
next. 

No  proceedings  can  be  had  on  a  bill  for  the  foreclosure  of  a 
mortgage,  if  it  appear  that  any  judgment  has  been  obtained  on 
a  suit  at  law,  for  the  money  demanded  by  such  bill,  or  any 
part  thereof,  unless  to  an  execution  against  the  property  of  the 
defendant  in  such  judgment,  the  sheriff  shall  have  returned  the 
execution  unsatisfied  in  whole  or  in  part,  and  that  defendant 
has  no  property  to  satisfy  the  execution,  except  the  mortgaged 
premises.  R.  S.  377,  §  109.  The  statute  does  not  require  the 
judgment  should  have  been  rendered  on  the  bond  or  note  ac- 
companying the  mortgage,  but  for  the  money  for  which  the 
mortgage  was  given.  The  judgment  is  in  the  name  of  Kelsey, 
but  complainant  is  the  owner  of  it,  and  there  is  nothing  to 
prevent  his  taking  out  execution  in  Kelse3''s  name,  and  collect- 
ing the  money.  Payment  of  the  judgment  to  Kelsey,  with  a 
knowledge  that  it  belongs  to  complainant,  would  not  be  a  satis- 
faction of  the  judgment.  As  to  construction  of  statute,  see  4 
Paige  R.  549;  8  Paige  R.  648;  and  9  Paige  R.  137. 

Demurrer  allowed,  with  leave  to  complainant  to  amend,  on 
paying  costs  within  twenty  days. 

355 


3S9  CASES  m  CHANCEEY. 


Brooks  V.  Mead. 


[*389]  *Edward   Brooks  v.   Mead.    Kellogg,  and 

Hale. 

Tl^is  Court  will  take  no  notice  of  a  parol  agreement  between  the  solicitors,  re- 
lating to  the  proceedings  in  a  cause,, but  require  all  agreements  to  conform 
fothe87thrule.i 

Where  complainant  had  failed  to  serve  his  replication  on  a  defendant,  but  the 
latter  attended  and  cross-examined  witnesses,  it  was  held  to  be  a  waiver 
of  aU  objections  to  the  replication. 

Motion  on  the  part  of  Hale  to  take  from  the  files  a  replica- 
tion to  his  answer,  because  it  was  not  filed  within  the  time 
allowed  by  the  rules  of  the  Court. 

From  the  affidavits  of  defendant's  solicitor,  it  appears  he 
never  had  any  knowledge  or  notice  that  any  replication  was,  or 
had  been  filed,  to  the  answer  of  Hale,  until  he  was  looking  over 
the  files  in  the  register's  oftice  in  January  last,  when  he  came 
across  the  replication.  The  affidavits  used  in  opposing  the  mo- 
tion state  that  a  copy  of  the  replication  was  not  served  on 
Hale's  solicitor,  in  consequence  of  a  parol  agreement  or  under- 
standing between  the  solicitors,  that  a  copy  need  not  be  seiwed. 
That  testimony  had  been  taken  in  the  cause  by  complainants, 
and  the  defendants.  Mead  and  Kellogg,  and  that  the  cause  is  on 
the  calendar  for  a  hearing.  That  notices  of  the  taking  of  such 
testimony  were  served  on  Hale's  solicitor,  who  attended  and 
cross-examined  the  witnesses,  and  that  Hale  himself  was  pres- 
ent on  one  occasion;  and  that  his  solicitor  had  applied  to  the 
solicitors  of  the  other  parties,  to  assent  to  a  commission  for  the 
examination  of  his  witnesses. 

E.  G.  Seaman^  for  Hale. 

II.  T.  Backus,  for  complainant. 

[*390]      *The  Chancellok.     I  can  take  no  notice  of  the  parol 
agreement  between  the  solicitors,  dispensing  with  ser- 

'  See  Suydam  v.  Dequindre,  ante,  23. 
356 


FIRST  CIRCUIT,  MARCH,  1844.  391 

Howard  v.  Palmer. 

xlee  of  a  copy  of  the  replication.  The  87th  rule  requires  every 
agreement,  in  respect  to  the  proceedings  in  a  cause,  to  be  re- 
duced to  the  form  of  an  order  by  consent,  and  entered  in  the 
book  of  common  orders,  or  to  be  in  writing,  and  signed  by  the 
party  against  whom  it  is  alleged. 

By  attending  and  cross-examining  the  witnesses,  defendant 
waived  all  objections  to  the  replication.  1  Hoff.  Oh,  Pr.  452. 
His  application  to  the  solicitors  of  the  other  parties,  to  assent 
to  a  commission  for  the  examination  of  his  witnesses,  shows 
his  understanding  of  the  state  of  the  pleadings.  If  there  were 
no  replication  to  his  answer,  he  could  examine  no  witnesses. 
Where,  by  mistake,  a  replication  has  not  been  filed,  and  yet 
witnesses  have  been  examined,  the  Court  will  permit  a  replica- 
tion to  be  filed  liunc  pro  tunc.  Mitf.  PL  323;  1  Smith  Pr. 
336. 

Motion  denied. 


*Jacob  M.   Howard  and    Noah   Sutton  v.  [*391] 
Thomas   Palmer. 

The  examination  of  a  defendant  to  a  judgment  creditor's  bill,  under  an  order 
entered  in  pursuance  of  the  111th  rule  [105  of  the  new  rules]  is  not  con- 
fined to  defendant's  property  or  effects,  but  extends  to  any  matter  which 
he  would  be  required  to  disclose  by  answer;  and  authorizes  the  examina- 
tion of  witnesses  on  any  matter  charged  in  the  bill,  and  not  admitted  by 
defendant  on  his  examination  before  the  Master. 

Where  a  special  motion  was  made  for  an  order  for  a  receiver  under  a  judgment 
creditor's  bill,  and  defendant  had  notice,  but  failed  to  appear  or  oppose 
the  motion,  it  was  held,  that  the  fact  of  a  demurrer  ha\nng  been  filed  was 
no  objection  to  granting  the  order  in  such  case,  and  that  the  defendant,  if 
he  meant  to  insist  upon  it,  should  have  interposed  his  objection  on  the 
hearing  of  the  motion,  that  the  Court  might  look  into  the  case  and  decide 
whether  it  was  well  taken. 

Tlie  service  of  a  copy  of  a  Master's  summons,  without  sho^ving  tbe  original, 
is  bad. 

357 


392  .     CASES  IX  CHANCERY. 

Howard  v.  Palmer. 

Irregularity  in  the  appointment  of  a  receiver  under  a  judgment  creditor's 
bQl  is  no  ground  for  defendant's  objecting  to  submit  to  an  examination 
concerning  bis  pi'operty  and  effects. 

An  order  in  part  erroneous  is  not  void,  so  far  as  relates  to  matters  properly 
contained  in  it. 

Judgment  creditor's  bill. 

A  motion  was  made  for  an  attacliment  against  defendant, 
for  not  appearing  before  a  Master  to  make  an  assignment  of 
his  property  to  receiver,  and  submit  to  an  examination  on  oatli 
relative  to  it.  The  motion  was  opposed,  on  the  ground  that 
the  appointment  of  the  receiver  by  the  Master  was  irregular, 
as  was  also  the  order  for  his  appointment,  and  for  defendant  to 
assign  and  deliver  over  his  property  to  him;  as  there  was  a 
demurrer  pending,  when  the  order  was  granted.  And  further, 
that  the  order  required  defendant  to  submit  to  such  examina- 
tion as  the  Master  should  direct,  in  relation  to  any  matter  the 
defendant  would  be  required  to  disclose  by  answer  to 
[*392]  the  bill  *of  complaint,  the  bill  not  having  been  taken 
as  confessed  under  the  llltli  rule  of  Court. 

J.  S.  Ahhott  and  J.  31.  Howard,  in  support  of  the  motion. 

II.  H.  Emmons,  contra. 

The  Chancellok.  The  order  under  the  111th  rule,  for  the 
appointment  of  a  receiver,  on  a  judgment  creditor's  bill,  differs 
materially  from  the  common  order  entered  in  this  class  of  cases, 
where  the  bill  has  not  been  taken  as  confessed  under  that  rule. 
The  examinaton  before  a  Master,  under  an  order  entered  in 
pursuance  of  the  rule,  is  intended  to  answer  the  double  purpose 
of  ascertaining  what  property  the  defendant  has  to  assign  and 
deliver  over  to  the  receiver,  and  of  an  answer  to  the  bill  of  com- 
plaint. Hence,  the  examination  is  not  limited  to  defendant's 
property  or  effects,  as  is  the  case  under  the  common  order;  but 
extends  to  any  matter  defendant  would  be  required  to  disclose 
by  answer  to  the  bill,  and  authorizes  the  examination  of  wit- 
nesses, on  any  matter  charged  in  the  bill,  and  not  admitted  by 
358 


FIRST  CIRCUIT,  MARCH,  1844.  393 

Howard  v.  Palmer. 

defendant,  on  his  examination  before  the  Master.     B7'owning 
V.  Bettis,  8  Paige  R.  568. 

The  order  for  a  receiver  was  granted  on  a  special  motion,  of 
which  notice  was  given  to  defendant's  solicitor,  who  did  not 
appear  to  oppose  it.  The  demurrer  was  no  objection  to  grant- 
ing the  order;  and  if  defendant  intended  to  insist  on  it  as  a 
i-eason  why  a  receiver  should  not  then  be  appointed,  he  should 
have  appeared,  and  opposed  the  motion  on  that  ground;  and  the 
Court  would  have  looked  into  the  pleadings  to  see  whether  the 
demurrer  was  well  taken,  or  not,  and,  if  it  had  any  doubt  on 
the  question,  would  have  ordered  the  motion  to  stand  over 
until  the  demurrer  was  disposed  of. 

*Complainants,  however,  erred  in  entering  their  order.  [*393] 
Instead  of  the  common  order,  they  entered  the  special 
order  authorized  by  the  111th  rule,  where  a  defendant  to  get 
rid  of  filing  an  answer,  gives  a  written  consent  that  the  bill 
may  be  taken  as  confessed,  and  a  receiver  appointed.  The 
error  appears  on  the  face  of  the  order,  which  shows  it  was 
granted  on  special  motion,  and  notice  to  defendant,  and  not  by 
consent  of  parties. 

A  motion  made  in  this  same  case,  on  the  first  day  of  term, 
for  an  attachment  against  defendant,  was  denied,  on  the  ground 
that  the  Master's  summons  was  not  sliow^n  to  defendant,  when 
he  was  served  with  a  copy  of  it,  and  that  he  w^as  not,  there- 
fore, bound  to  obey  it.  Tlie  Master,  notwithstanding  defend- 
ant paid  no  attention  to  his  summons,  and  did  not  so  much  as 
appear  before  him,  went  on,  and  appointed  a  receiver.  This 
was  irregular,  as  the  Master's  summons  had  not  been  properly 
served;  and  the  appointment  of  the  receiver  would,  on  that 
account,  be  set  aside  on  defendant's  motion.  But  this  irregu- 
larity in  the  appointment  of  a  receiver,  is  no  answer  to  the 
present  motion.  Defendant  should  have  made  a  motion  to 
have  the  appointment  set  aside,  and  obtained  an  order  staying 
proceedings,  in  the  meantime,  before  the  Master.  He  should, 
also,  have  taken  this  course,  if  he  wished  to  have  the  objection- 
able parts  of  the  order  for  a  receiver  stricken  out.  The  order 
is  not  void.     3  Paige  R.   195    253;  5  Paige   R.   160.     It  is 

359 


394  CASES  m  CHANCEEY. 

Barstow  v.  Smith. 

erroneous,  only  so  far  as  it  requires  defendant  to  answer  under 
oath  any  matter  he  was  bound  to  disclose  by  answer  to  the  bill. 
If  defendant  wished  to  avoid  the  trouble  and  expense  of  a  mo- 
tion to  correct  the  order,  he  should  have  appeared  before  the 
Master,  and  objected  to  that  part  of  it  which  is  improper, 

and  refused  to  be  examined  under  it,  except  as  to  the 
[*394]  "^property   and  effects   he  was   required  to  assign  and 

deliver  over  to  the  receiver. 
Under  the  circumstances,  I  shall  grant  the  motion  for  an 
attachment,  unless  defendant,  within  two  days,  waives  all  irreg- 
ularity in  the  appointment  of  the  receiver,  in  which  case  the 
motion  is  to  be  denied,  with  leave  to  complainants  to  amend 
their  order  for  the  appointment  of  a  receiver. 


Samuel  Barstow  v.  Hiram  Smith  and  Hannah  his 
WIFE,  Arza  Lewis  and  Mary  his  wife,  and  Elisha 
Thornton  and  Aurilla  K.  his  wife. 

The  Court  must  judge  of  the  intent  of  the  legislature,  from  the  language 
used  to  express  that  intent;  and  where  the  language  is  clear  and  explicit, 
and  susceptible  of  but  one  meaning,  and  there  is  nothing  incongruous  in 
the  act,  the  Court  is  bound  to  suppose  the  legislature  intended  what  their 
language  unports.^ 

Where  the  certificate  of  the  aclaiowledgment  of  femes  covert  to  a  mortgage 
subsequent  to  the  act  of  1840,  declared  that  they  executed  it  without  feiu- 
or  compulsion  of  their  husbands,  it  teas  held,  that  such  certificate  was  no 
evidence,  either  in  law  or  equity,  of  such  an  acknowledgment  by  them  as 
the  act  of  1840  requires,  to  bar  their  right  of  power. 

A  demurrer  may  be  good  as  to  one  defendant,  and  bad  as  to  other  defend- 
ants.^ 

It  is  a  good  ground  of  demurrer  to  the  whole  bill  that  one  of  the  complainants 
has  no  interest  in  the  suit,  and  has  improperly  joined  with  others  in  filing 
the  bill;  but  there  is  no  such  rule  in  regard  to  defendants. 

» See  Bidwell  v.  Whittaker,  1  Mich.,  469;  Leoni  v.  Taylor,  20  id.,  148. 
'  Williams  v.  Hubbard,  ante,  28. 

360 


FmST  CIRCUIT,  MARCH,  1844.  395 


Barstow  v.  Smith. 


Bill  to  foreclose  a  mortgage. 

The  bill,  after  setting  forth  the  mortgage,  stated  the  execu- 
tion of  it  was  acknowledged  in  due  form  of  law  before  Andrew 
Dorsey,  a  justice  of  the  peace  of  Calhoun  county,  by  all  ot 
the  defendants;  and  that  "the  said  Mary,  Hannah,  and 
Aurilla  K.  being  examined  by  said  *justice  separate  and  [*395] 
apart  from  their  husbands,  acknowledged  that  they  had 
executed  said  indenture  of  mortgage  without  any  fear  or  com- 
pulsion of  thei?'  said  husbands,  as  in  and  by  the  certificate  of 
the  acknowledgment  thereof,  endorsed  on  said  indenture  of 
mortgage,  and  signed  by  said  justice,  will  more  fully  appear." 
The  defendants  put  in  a  joint  demurrer,  on  the  ground  the 
justice's  certificate  of  the  acknowledgment  of  the  execution 
of  the  mortgage,  by  Mary,  Hannah,  and  Aurilla  K.,  was  in- 
sufiicient  to  bar  their  inchoate  right  of  dowser  in  the  mort- 
gaged ])reniises,  under  the  fourth  section  of  the  act  relating  to 
the  conveyance  of  real  estate,  {Session  Laws,  1840,  J9.  167,) 
which  section  is  in  these  words:  "That  the  rights  of  dower 
which  any  feine  covert  may  have  to  any  lands  in  the  State  of 
Michigan,  shall  not  be  passed  or  conveyed  only  by  deed  exe- 
cuted by  such  feme  covert,  and  acknowledged  by  such  feme 
covert,  on  a  private  examination,  separate  and  apart  from  her 
husband,  that  she  executed  the  deed  without  fear  or  compulsion 
from  any  one;  which  acknowledgment  shall  be  certified  upon 
such  deed  by  the  officer  before  whom  it  may  be  made." 

T.  Romeyn,  in  support  of  the  demurrer. 

S.  Barstow,  contra. 

The  Chancellok.  To  bar  the  wife's  right  of  dower,  the  re- 
vised statutes  required  she  should  acknowledge,  apart  from  her 
husband,  that  she  executed  the  deed  without  any  fear  or  com- 
pulsion of  her  husband.  E.  S.  ji;.  203,  §  7.  This  was  done  in 
the  present  case,  and  it  is  insisted  the  fourth  section  of  the  act 
of  1840,  altliough  its  phraseology  difiers  somewhat  from  the 
revised  statutes,  w'as  not  intended  to  change  the  long  and  well 
established  rule   of  law  on    this    subject.     The  Court  must 

3G1 


396  CASES  m  CHANCEEY. 

Barstow  v.  Smith. 

[*396]  judge  of  the  intent  *of  the  legislature  from  the  language 
used  to  express  that  intent;  and  where  the  language  is 
clear  and  explicit,  and  susceptible  of  but  one  meaning,  and 
there  is  nothing  incongruous  in  the  act,  the  Court  is  bound  to 
suppose  the  legislature  intended  what  their  language  imports. 
The  act  of  1840  requires  a  fe^ne  covert  to  acknowdedge,  on  a 
private  examination,  separate  and  apart  from  her  husband,  that 
she  executed  the  deed  without  fear  or  compulsion  from  any 
one^  not  without  fear  or  compulsion  of  her  husband,  but  from 
any  one, — her  husband,  or  any  other  person.  It  supposes  she 
might  be  impelled,  through  fear  or  compulsion  of  some  one 
else  than  her  husband,  to  execute  a  deed  parting  with  her 
rights.  There  is  nothing  improbable  in  such  a  supposition. 
If  a  husband  can  be  guilty  of  such  cruelty  towards  one  whom 
he  is  bound  to  cherish  and  protect,  it  is  not  difficult  for  the 
mind  to  conceive  a  relative  of  the  wife,  or  a  stranger,  in  a  situ- 
ation to  operate  upon  her  timidity,  and  to  influence  her  acts  by 
terror  or  fear,  which  the  law  guards  against  as  well  as  force. 
It  is  immaterial  from  what  quarter  it  proceeds,  whether  from 
her  husband  or  a  third  person,  if  she  is  driven  by  it  to  do  what 
she  otherwise  would  not  have  done.  Something  of  this  kind 
must  have  led  to  the  new  enactment,  and  the  difference  in  the 
phraseology  of  the  two  laws.  The  fourth  section  of  the  act  of 
1840,  was  a  work  of  supererogation,  on  the  part  of  the  legisla- 
ture, if  there  was  no  intention  at  the  time  to  change  the  then 
existing  law.  I  am,  therefore,  although  it  may  affect  many 
titles,  constrained  to  declare  that  the  justice's  certificate  is  not 
evidence,  either  at  law  or  in  this  Court,  of  such  an  acknowledg- 
ment by  the  defendants  Hannah,  Mary,  and  Aurilla  K.  of  the 
execution  of  the  mortgage  by  them,  as  the  act  of  1840  requires 
to  bar  their  right  of  dower  in  the  mortgaged  premises,  should 

they  survive  their  husbands. 
[■••397]  ^Whether  the  Court  could  give  relief  in  such  a  case, 
if  the  defective  certificate  were  the  result  of  accident,  or 
mistake  in  the  justice,  in  not  propounding  the  proper  question,  or 
in  drawing  up  the  certificate,  it  is  not  my  intention  at  this  time 
to  decide.     To  enable  complainant  to  bring  this  question  before 

362 


FIEST  CIRCUIT,  MAECH,  1844.  398 

Bank  of  Michigan  v.  Niles. 

the  Court,  if  he  should  think  proper  to  do  so,  I  shall  allow  the 
(Icinurrer  as  to  the  delciidaiits  Hannah,  Mary,  and  Anrilla  K., 
witli  leave  to  complainant  to  amend  liis  bill;  and  overrule  it  as 
to  the  other  defendants.     Neither  party  to  have  costs. 

A  demurrer  may  be  good  as  to  one  defendant,  and  bad  as  to 
other  defendants.  Coop.  Eq.  PI.  113;  8  Ves.  E.  403,  404. 
The  rule  that  it  cannot  be  good  in  part  and  bad  in  ])art,  and 
therefore  is  bad  as  to  the  whole,  applies  to  difierent  parts  of  tlie 
bill  covered  by  the  demurrer,  and  not  to  different  defendants 
who  have  united  in  the  demurrer,  as  to  one  or  more  of  whom 
it  may  be  good,  and  bad  as  to  others.  It  is  a  good  ground 
of  demurrer  to  the  whole  bill  that  one  of  the  complainants  has 
no  interest  in  the  suit,  and  has  improperly  joined  with  others 
in  tiling  the  bill;  3  Paige  E.  336;  4  Euss.  E.  225;  but  there 
is  no  such  rule  in  regard  to  defendants.  These  remarks  are 
made  in  answer  to  what  was  said  on  the  argument,  that  the 
fiemurrer,  if  good  for  apart  of  the  defendants,  must  be  allowed 
as  to  all  of  them. 

Demurrer  allowed  as  to  defendants  Hannah,  Mary,  and  Au- 
rilla  K.,  but  without  costs,  and  overruled  as  to  other  defend- 
ants. 


'='The  President,  Directors  and  Company  of  ['-'398] 
THE  Bank  of  Michigan  v.  Johnson  Niles. 

It  is  usual  on  allowing  a  demurrer  for  any  cause  which  the  Court  sees,  on  the 
argument,  may  :be  obviated  by  amending  the  bill,  to  give  leave  to  amend 
on  paj-ing  the  costs  of  the  demurrer.  But  where  the  Court  on  the  argu- 
ment cannot  see  from  the  facts  before  it,  how  the  objection  on  which  the 
demurrer  was  sustained  could  be  removed,  it  is  necessary]  for  the  com- 
plainant to  apply  for  leave  to  amend,  by  petition  setting  forth  the  addi- 
tional facts  sought  to  be  incorporated  in  the  bill.^ 

^An  amendment  of  the  bill  is  not  allowed  as  of  course  after  replication 
and  testimony;  but  a  special  application  for  leave  to  amend  is  necessarj'. 
Hammond  r.  Place,  Harr.  Ch.  438. 

It  is  discretionary  with  the  Com"t  to  allow  the  bill  to  be  amended  and 

363 


399  CASES  m  CHANCERY. 

Bank  of  Michigan  r.  Niles. 

The  Supreme  Court  has  no  original  equity  jurisdiction  and  cannot  act  upon 
any  facts  which  do  not  constitute  a  part  of  a  case  appealed  from,  and  leave 
to  amend  can  only  be  granted  by  the  Court  where  the  cause  originated.' 

Where  a  petition  was  presented  for  leave  to  amend  a  bill,  by  inserting  addi- 
tional facts,  after  a  decree  sustaining  a  demun-er  to  the  bUl  had  been  af- 
firmed by  the  Supreme  Court,  on  the  same  reasons  which  had  governed 
this  Court,  it  teas  held,  that  the  application  came  too  late. 

A  complainant  wishing  to  amend  his  bill,  must  take  the  first  opportunity  after 
being  made  acquainted  with  the  defects  in  it,  to  ask  leave  to  do  so^ 

Complainants  filed  their  bill  in  this  Court  for  the  specific 
performance  of  a  contract  for  the  sale  of  real  estate,  to  which 
the  defendant  demurred ;  and  the  demurrer  being  allowed,  {vide 
ante  99,)  complainants  appealed  to  the  Supreme  Court,  where 
the  order  of  this  Court  allowing  the  demurrer  was  affirmed; 
and  on  the  case  being  remitted  for  further  proceedings,  they 
presented  their  petition  for  leave  to  amend. 

J.  F.  Joy,  for  complainants. 

A.  D.  Fraser,  for  defendant. 

The  Chancelloe.  It  is  usual,  on  allowing  a  demurrer,  for 
any  cause,  which  tlie  Court  sees,  on  the  argument,  may  be 
[*399]  obviated  by  amending  the  bill,  to  give  leave  to  *amend, 
on  paying  the  costs  of  a  demurrer.  The  proposed 
amendment  is  not  one  of  this  character.  The  Court  could  not 
see,  on  the  argument  of  the  demurrer,  from  tlie  facts  then 
before  it,  how  the  objection  on  which  the  demurrer  was  sus- 
tained could  be  removed.  Hence  the  necessity  of  complainants' 
founding  their  application  on  a  petition,  stating  the  additional 
facts  they  wish  to  incorporate  in  their  bill.     Had  they  presen- 

the  cause  opened  for  proofs  after  it  has  been  set  down  for  hearing  on  bill, 
answer  and  replication.     Briggs  v.  Briggs,  20  Mich.,  34. 

As  to  amendments  at  the  hearing,  see  Gorhamv.  Wing,  10  Mich.,  486; 
Babcock  v.  Twist,  19  id.,  516;  Goodenow  v.  Curtis,  18  id.,  298. 

'See  Sears  v.  Schwarz,  1  Doug.,  504;  House  v.  Dexter,  9 Mich.,  246;  Pal- 
mer V.  Rich,  12  id.,  414,  amendment  after  reversal  of  decree  by  the  Supreme 
Court  for  want  of  parties;  Moran  v.  Palmer,  13  id.,  367. 

864 


FIRST  CIECUIT,  MAECII,  1844.  400 

Bank  of  Michigan  v.  Niles. 

ted  their  petition  on  tlie  allowance  of  tlie  demurrer,  1  should 
have  permitted  them  to  amend.  They  do  not  ask  to  change 
the  substance  of  their  case,  which  would  be  inadmissible,  but 
to  make  certain  facts,  out  of  which  the  contract  between  them 
and  defendant  originated,  a  part  of  their  bill,  for  the  puq^ose 
of  showing:  that  defendant  and  one  Turner  had  made  a  contract 
with  Pierson  for  the  purchase  of  the  Rochester  mill  property, 
and  that  Turner  had  assio-ned  his  interest  in  that  contract  to 
them,  in  payment  of  a  debt,  previous  to  their  contract  with 
<lefendant;  and,  that  the  $5,000  they  were  to  pay  Pierson, 
mentioned  in  their  contract  with  defendant,  was  a  balance  due 
Pierson  on  his  contract  with  defendant  and  Turner.  But  it  is 
insisted  that  this  Court,  the  order  allowing  the  demurrer  hav- 
ing been  affirmed  by  the  Supreme  Court,  has  not  now  the 
power  to  allow  the  amendment;  and  that  complainants  should 
have  made  their  application  to  the  Supreme  Court,  for  leave  to 
amend,  instead  of  making  it  to  this  Court,  or  that  they  should 
have  obtained  leave  of  that  Court  to  make  the  motion  here. 

Any  person  who  may  think  himself  aggrieved  by  the  decree 
or  final  order  of  this  Court,  (R.  S.  379,  §  121,)  may  appeal 
therefrom  to  the  Supreme  Court;  which  may  reverse,  affirm,  or 
alter  such  order  or  decree,  and  make  such  other  order  or  decree 
therein,  as  justice  or  equity  shall  require.  R.  S.  380,  §  125.  The 
Supreme  Court  has  no  original  equity  jurisdiction.  In 
matters  of  equity  it  has  *appellate  powers  only.  It  may  [*400] 
affirm,  reverse,  or  modify  the  final  order  or  decree  ap- 
pealed from,  upon  the  pleadings  and  proofs  on  which  the  cause 
was  heard  and  determined  in  this  Court.  But  no  new  facts  in 
the  cause  can  be  elicited  in  that  Court  as  the  basis  of  its  action, 
without  making  it  a  Court  of  original  jurisdiction,  as  well  as  a 
Courtof  appellate  jurisdiction;  so  far,  at  least,  as  the  new  facts 
are  concerned,  and  have  a  bearing  on  the  decree  appealed  from, 
or  the  practice  of  this  Court.  The  appellate  Court  could  not 
have  entertained  the  present  application,  and  granted  the  pray- 
er of  the  pititioners,  without  acting  in  a  matter  that  had  not 
been  before  this  Court,  and  from  which,  consequently,  no 
appeal  had  been  taken.     The  case  oi Filkins  v.  Hill,  4  Bro. 

365 


401  CASES  m  CHAIn'CERY. 


Bank  of  Michigan  v.  Niles. 


P.  C.  6-10,  is  no  authority  for  the  exercise  of  this  power  by  the 
appelate  Court.  In  that  case  the  Chancellor's  decree  awarding; 
a  feigned  issue  was  reversed,  with  leave  to  complainant  to 
amend  his  bill,  because  the  fact,  to  ascertain  which  the  issue 
had  been  directed,  was  not  put  in  issue  by  the  pleadings ;  and 
the  appellate  Court,  on  reversing  the  order  of  the  Chancellor, 
made  such  order  as  the  Chancellor  himself  should  have  made 
from  the  facts  before  him.  The  appellate  Court  acted  on  the 
same  facts  that  the  Chancellor  had  acted  on,  and  not  on  any 
new  facts  introduced  into  the  case  after  the  appeal  had  been 
taken. 

Neither  is  the  case  of  Murray  v.  Coster,  20  J.  R.  576,  as  I 
view  it,  any  authority  for  such  power  in  the  appellate  Court. 
That  was  an  appeal  from  an  order  overruling  a  plea  of  the  statute 
of  limitations.    The  Chancellor  overruled  the  plea,  because  the 
case  made  by  the  bill  was  a  case  of  trust,  to  which  the  statute  of 
limitations  could  not  be  pleaded.    The  defendant  appealed,  and 
the  order  overruling  the  plea  was  affirmed ;  but  for  a  different  rea- 
son from  that  assigned  by  the  Chancellor.    The  appellate 
[*401]  ^Court  decided  the  case  made  by  the  bill  was  not  a  trust, 
that  the  statute  of  limitations  was  a  good  plea,  but  that 
the  answer  accompanying  the  plea  showed  such  an  acknowdedg- 
ment  of  the  debt,  as  took  it  out  of  the  statute.     Thereupon  a 
motion  was  made  to  send  back  the  cause  to  the  Chancellor,  with 
directions  to  allow  appellant  to  amend  his  answer;  which  was 
denied,  on  the  ground  that  an  amendment  to  the  answer  could 
affect  nothing.     It  was  not,  therefore,  necessary  in  that  case  for 
the  appellate  Court  to  decide  on  its  power  to  give  the  directions 
asked.     Ch.  J.  Spencer,  whose  opinion,  throughout  the  case  in 
the  Court  of  Errors,  prevailed,  doubted  the  power  of  the  Court 
to  give  the  directions.     He  spoke  of  the  case  of  FilMns  v.  Hill, 
as  no  authority  for  the  application.     He  said  it  was  "  a  novel 
application  to  a  court  of  appeals,"  and  "  if  the  Court  had  the 
power,  he  should  not  be  for  exercising  it." 

In  Broum  v.  Idley,  f>  Paige  R.  46,  a  decretal  order  of  the 
Vice  Chancellor,  awarding  a  feigned  issue  to  determine  the 
validity  of  a  will,  was  appealed   from   to  the  Chancellor,who 

366 


FIRST  CIPwCUIT,  MARCH,  1844.  402 

Bank  of  Michigan  v.  Niles. 

affirmed  the  decree;  and  an  appeal  was  then  taken  to  the  Court 
of  Errors,  where  the  decree  was  also  affirmed.  The  cause  bein<^ 
remitted  to  the  Yice  Chancellor,  lie  allowed  complainant  to 
amend  the  bill  by  strikini^  out  the  name  of  an  infant  complain- 
ant. From  this  last  order  an  appeal  was  taken  to  the  Chancel- 
lor, who  reversed  the  order  of  the  Vice  Chancellor,  on  the 
ground  that  the  amendment  was  not  a  mere  matter  of  form, 
and  that,  after  the  cause  had  been  heard  on  the  pleadings  and 
proofs,  no  other  than  mere  formal  amendments  should  be  al- 
lowed; and  those  under  special  circumstances.  He  speaks  of 
the  decree  of  the  Yice  Chancellor  having  been  affirmed  by  the 
Court  of  dernier  resort,  without  any  authority  reserved  to  open 
or  modify  it.  But  I  look  upon  this  as  an  additional  reas(»ii 
to  what  he  had  before  stated,  why  the  amendment 
*should  not  have  been  allowed,  and  not  as  a  sufficient  [*402] 
reason,  of  itself,  for  refusing  the  amendment.  It  does 
not  appear  to  have  been  insisted  on  in  opposing  the  amend- 
ment, either  before  the  Chancellor  or  Yice  Chancellor. 

In  McElwain  v.  Willis  arid  others^  3  Paige  R.  505,  which 
was  an  appeal  to  the  Chancellor,  from  the  decision  of  the  Yice 
Chancellor,  allowing  the  several  demurrers  of  Willis  and  Yard- 
ley,  two  of  the  defendants  to  a  judgment  creditor's  bill,  the  de- 
cision of  the  Yice  Chancellor  as  to  Yardley's  demurrer  was 
affirmed,  with  leave  to  the  complainant  to  apply  to  the  Yice 
Chancellor  to  amend  his  bill.  In  this  case,  the  demurrer  was 
to  a  matter  of  form  merely,  and  leave  to  amend  had  been  asked 
on  the  argument  of  the  demurrer  before  the  Yice  Chancellor, 
and  should  have  been  granted  by  him. 

In  Jachson  v.  Ashton^  10  Pet.  R.  480,  which  was  an  appeal 
from  the  Circuit  Court  of  the  United  States  for  the  eastern  dis- 
trict of  Pennsylvania,  the  decree  of  the  Circuit  Court  had  been 
reversed  by  the  Supreme  Court,  for  want  of  jurisdiction, — the 
citizenship  of  one  of  the  parties  not  appearing  on  the  record. 
A  )»otion  was  afterwards  made  in  the  Supreme  Court  to  amend, 
which  was  denied.  The  Court  say,  however,  "we  entertain  no 
iloubt,  that,  notwithstanding  anything  in  the  former  decree  of 
reversal,  it  is  entirely  competent  for  the  Circuit  Court,  in  their 

3G7 


403  CASES  IN  CHANCERY. 

Bank  of  Michigan  v.  Niles. 

discretion,  to  allow  the  amendment  now  proposed  to  be  made, 
and  to  reinstate  the  cause  in  that  Court. 

But  the  opinion  of  the  Supreme  Court  affirming  the  order 
of  this  Court  allowing  the  demurrer,  it  is  contended,  is  the  law 
of  the  case.  It  is  no  more  the  law  of  the  case  than  the  decision, 
of  this  Court  was  the  law  of  the  case,  in  this  Court,  before  it" 
was  affirmed.  Of  what  case  is  the  decision  of  the  Supreme 
Court  the  law?  Of  the  case  upon  the  record,  and  of  no 
[*-i03]  other  case;  and  this  Court  is  *not  asked  to  review  that 
case,  and  reverse  both  its  own  decision  and  the  decision 
of  the  Supreme  Court,  (for  it  could  not  do  one  without  the 
other,)  but  to  allow  complainants  to  make  a  new  case; — a  case 
that  has  not  been  decided  by  either  Court.  There  is  no  analogy 
between  the  present  application  and  the  case  of  Gelston  v.  Cod- 
loise,  1  J.  C.  R.  189.  In  that  case  there  was  an  attempt  made 
to  litigate  rights  that  had  previously  been  decided  on  their 
merits  by  the  appellate  Court. 

I  am  therefore  of  opinion  tlie  complainants  have  properly 
presented  their  petition  to  this  Court;  and  the  only  question  is 
whether  they  have  not  come  too  late  with  their  application.  I 
think  tiiey  have.  They  should  have  presented  their  petition 
before  they  appealed,  and  made  their  case  as  perfect  as  it  could 
be  made  before  going  to  the  appellate  Court.  The  reasons  for 
sustaining  the  demurrer  were  stated  by  the  Court,  when  the  de- 
murrer was  allowed;  the  complainants  were  aware  of  them,  and 
the  decision  of  this  Court  has  been  affirmed  by  the  appellate 
Court,  on  the  grounds  taken  by  this  Court.  The  present  is  not 
the  first  opportunity  complainants  have  had  to  ask  leave  to 
obviate  the  objections  raised  to  the  bill  by  the  demurrer.  If 
it  were,  the  case  would  be  altogether  different.  If  the  decretal 
order  of  this  Court  had  been  affirmed  for  different  reasons  than 
those  assigned  by  this  Court,  and  the  latter  had  been  held 
invalid  by  the  appellate  Court,  the  complainants  would  stand 
on  different  ground  from  what  they  do.  They  could  then  say 
this  was  the  first  opportunity  they  had  had,  after  being  made 
acquainted  with  the  defects  in  their  bill,  to  ask  leave  to  amend. 
Such  an  application  would  come  with  much  force.  But  to 
368 


FOUETH  ClPtCUIT,  MAY,  1844.  404 

Chipman  v.  Thompson- 
grant  the  present  application,  nnder  the  circumstances,  would 
be  carrying  the  doctrine  of  ainendinents  much  further  than  any 
case  has  yet  carried  it,  and  encouraging  appeals  wliere 
they  *are  not  necessary  to  the  ends  of  justice.     I  know  [*404] 
of  no  case  that  has  gone  this  length,  and  I  have  been 
referred  to  none. 

The  solicitor's  ignorance  of  the  facts  stated  in  the  petition, 
until  after  the  ap])eal  liad  been  taken,  cannot  place  the  com- 
plainants in  a  better  position  tlian  they  would  have  been  in  had 
they  not  appealed.  The  case  was  argued  in  this  Court  some 
montlis  before  it  was  decided,  when  the  solicitor  was  made  ac- 
quainted with  the  objections  to  the  bill,  and  he  should  then 
have  inquired  of  his  clients  wlietlier  they  could  be  obviated  in 
case  the  demurrer  was  sustained. 

Motion  denied. 


*Sarah    B.   Chipman,    a  minor,   by  Harris  [*405] 
Newton,   her   next   friend,    v.  Thaddeus 
Thompson,  Samuel   F.  Chipman  et  al. 

a  court  of  equity  may  relieve  against  the  breach  of  a  condition  precedent  in  the 
nature  of  a  penalty;  and  there  is  no  good  reason  why  it  should  not  relieve 
against  the  breach  of  a  condition  precedent,  when  it  would  against  a  con- 
dition subsequent.^ 

The  substantial  difference  which  governs  courts  of  equity,  in  cases  of  condi- 
tions, is  not  whether  the  condition  be  precedent  or  subsequent,  but  whether 
a  compensation  can,  or  cannot  be  made. 

The  Court  is  not  bound,  in  all  cases  where  a  compensation  can  be  made,  to 
give  relief;  for  the  party  seeking  relief  may  have  so  conducted  himself  as 
to  have  lost  all  claim  to  its  interposition;  but  when  this  is  not  the  case, 
and  it  is  equitable  under  the  circumstances  that  relief  should  be  given,  it 
is  competent  for  the  Court  to  give  it. 

^  To  the  point  that  equity  will  not  lend  its  aid  to  enforce  a  penalty  or  forfeit- 
ure, see  Crane  r.  Dwyer,  9  Mich.,  350;  White  v.  Port  Huron  &  Milwaukee 
R'w'y  Co.,  13  id.,  356;  Wing  v.  Railey,  14  id.,  83;  Fitzhugh  v.  Maxwell,  34 
id.,  138. 

Voi..  I.— 24  369 


40G  CxVSES  IN  CHANCEKY. 

Chipman  v.  Thompson. 

A  bill,  filed  and  sworn  to  by  a  person  who  is  deceased,  is  evidence  against  his 
heirs  to  prove  what  might  be  proved  by  his  declarations.^ 

In  a  suit  respecting  lands,  where  defendants  were  described  in  the  bill  as  heirs 
of  the  father,  when  in  fact  they  claimed  as  heirs  of  their  mother,  it  was 
held,  that  they  were  properly  made  parties,  as  claiming  an  interest  in  the 
property  in  controversy;  and  that,  if  they  wished  to  take  the  objection  that 
their  interest  was  not  properly  made  to  appear  in  the  bill,  they  should 
have  demurred ;  and  that  it  was  too  late  to  raise  it  on  the  hearing,  after 
proofs  had  been  taken,  and  it  appeared  to  the  Court  that  the  proper  par- 
ties were  before  it. 

Cyeus  Chipman,  in  his  lifetime,  being  the  owner  of  some 
personal  property,  and  seized  in  right  of  his  wife,  Anna  Chip- 
man,  of  a  farm  of  ninety  acres  in  Avon,  Oakland  county,  and 
being  desirous  of  providing  for  the  support  of  himself  and  wife 
during  their  lives,  and  for  the  education  and  support  of  Anna 
F.  Chipman,  a  minor  daughter,  during  her  minority,  on  the 
12th  day  of  February,  1834,  entered  into  the  following  agree- 
ment with  his  son,  George  A.  Chipman : 

''  This  agreement  made  and  entered  into  this  12th  day  of 
February,  A.  D.  one  thousand  eight  hundred  and 
[*406]  *thirty-four,  by  and  between  Cyrus  Chipman,  of  Oak- 
land, in  the  county  of  Oakland,  and  the  territory  of 
Michigan,  of  the  one  part,  and  George  A.  Chipman,  of  the 
the  same  place,  of  the  other  part,  witnesseth:  That  the  said 
Cyrus  Chipman,  in  consideration  of  the  agreements  on  the  part 
of  the  said  George  A.  Chipman,  hereinafter  mentioned,  doth  by 
these  presents  lease  and  to  farm  'let  unto  the  said  George  A. 
Chipman,  and  to  his  heirs,  the  farm  on  which  the  said  Cyrus 
Chipman  now  lives,  in  the  township  of  Oakland  aforesaid,  for 
and  during  the  natural  lives  of  the  said  Cyrus  Chipman  and 
Anna  Chipman,  wife  of  the  said  Cyrus;  and  the  said  Cyrus 
Chipman  doth  hereby  convey  to  the  said  George  A.  Chipman 
and  his  heirs  all  the  personal  property  now  owned  by  him,  e.\- 
cepting  the  household  furniture,  which  is  to  be  equally  divided 
between  the  said  George  A.  Chipman  and  Anna  F.  Chipman, 
or  their  heirs.  In  consideration  of  which,  the  said  George  A. 
Chipman  agrees,  for  himself,  his  heirs,  executors  and  adminis- 

»See  Wilson  v.  Wilson,  6  Mich.,  9;  Jones  v.  Tyler,  id.,  364. 
370 


FOURTH  CIRCUIT,  MAY,  1844.  407 

Chipman  v.  Tliompson. 

trators,  to  support,  clothe,  victual  and  lodge  the  said  Cyrus 
('liipman  and  Anna  Cliipman  during  their  natural  lives,  and 
furnish  them  with  all  necessary  medicines  and  medical  attend- 
ance in  sickness,  and  all  other  attendance  necessary  in  their  old 
age,  and  in  all  respects  conduct  himself  towards  the  said  Cyrus 
Chipman  and  Anna  Chipman  as  a  son  ought  to  conduct  him- 
self towards  his  parents;  and  in  case  the  said  Cyrus  and  Anna, 
or  either  of  them,  shall  at  any  time  desire  to  reside  at  any  otli- 
er  place  than  with  the  said  George  A.  Chipman,  they  are  to 
have  that  privilege,  and  the  said  George  A.  Chipraan's  liability 
to  support  them  is  to  continue  the  same. 

"  And,  whereas,  a  deed  of  the  aforesaid  farm  has  this  day 
been  made  out  and  executed,  and  placed  in  the  hands  of  Tiuid- 
deus  Thompson,  of  the  township  of  Troy,  in  the  county 
of  Oakland  aforesaid;  now,  if  the  said  George  A.  *Chip-  [*407] 
man  shall  well  and  truly  perform  on  his  part  all  the  con- 
ditions of  this  agreement,  the  said  deed,  on  the  death  of  the 
said  Cyrus  Chipman  and  Anna  Chipman,  is  to  be  delivered  to 
the  said  George  A.  Chipman,  his  heirs,  executors  or  adminis- 
trators; but  in  case  the  said  George  A.  shall  fail  to  perform  the 
said  conditions,  the  said  deed  is  not  to  be  delivered  to  him,  but 
the  land  therein  specified  to  be  and  remain  in  the  said  Anna 
Chipman,  the  same  as  though  the  said  deed  had  not  been  exe- 
cuted. And  the  said  George  A.  Chipman  further  agrees  to 
support  Anna  F.  Chipman,  during  any  sickness  with  which  she 
may  be  visited,  until  she  is  of  the  age  of  one  and  twenty,  pro- 
vided she  does  not  sooner  get  married,  and  also  give  the  said 
Anna  F.  Chipman  a  good  common  education,  and  clothe  her 
during  her  minority." 

A  deed  of  the  farm  was  made  out,  executed  and  acknowledged 
in  due  form  of  law  by  Cyrus  and  Anna,  and  delivered  to 
Thompson  to  be  delivered  by  him  in  pursuance  of  the  agree- 
ment. Cyrus  and  Anna  afterwards  resided  on  the  farm  witli 
George,  who  it  is  admitted,  during  his  lifetime,  in  all  respects 
fulfilled  the  agreement.  Anna  died  in  January,  1837,  and 
George  in  September  of  the  same  year,  leaving  Eliza  Ann 
Chipman,  his  widow,  and  the  complainant,  Sarah  B.  Chipman, 

371 


40S  CASES  IN  CHANCERY. 

Chipman  v.  Thompson. 

his  only  cliild  and  lieir  at  law.  Cjrus,  after  the  death  of  George 
continued  to  reside  on  the  farm,  with  George's  widow  and  child, 
as  he  had  done  in  George's  lifetime.  On  the  9th  day  of  June, 
1839,  the  widow  intermarried  with  Harris  -  Newton,  who  went 
to  reside  on  the  farm  with  her,  and,  soon  after,  was  appointed 
guardian  to  complainant.  Cyrus,  becoming  dissatisfied  with 
Xewton's  conduct,  on  the  26th  day  of  July  following  went  to 
reside  with  Samuel  F.  Chipman,  another  son  of  his,  with  whom 

he  continued  until  his  death  in  October,  1840.  New- 
[*408]  ton,  during  this  time,  paid  but  fifteen  *dollars  towards 

supporting  him.  Bills  for  board  and  the  like  were  pre- 
sented for  payment,  which  he  neglected  or  refused  to  pay,  on 
the  ground  they  w:ere  extravagant,  but  alleged  a  willingness  to 
pay  what  was  right.  After  the  death  of  Cyrus,  in  consequence 
of  the  unwillingness  of  the  heirs,  Thompson  refused  to  deliver 
up  the  deed,  and  Samuel  F.  Chipman  commenced  an  action  of 
ejectment  against  Newton,  to  recover  possession  of  the  farm. 
Thereupon  complainant  filed  her  bill  against  Thompson  and 
the  heirs,  praying  a  delivery  of  the  deed  to  her,  on  her  paying 
what  was  justly  due  for  the  support  and  maintenance  of  Cyrus 
Chipman,  after  he  left  the  residence  of  her  guardian,  and  for 
an  injunction  against  the  proceedings  at  law  to  recover  posses- 
sion of  the  farm. 

O.  D.  RicTiardson  and  TT.  Draper,  for  complainant. 

H.  ChijpTTian,  for  defendants. 

The  Cha:n^cellor.  The  relief  asked  is  opposed  principally 
on  three  grounds:  First.  That  the  agreement  between  the 
father  and  son,  was  to  be  executed  by  the  latter  in  person,  and, 
on  his  death,  became  inoperative  and  void.  Second.  That  it 
is  not  binding  on  the  heirs  of  Anna  Chipman,  and  should  not 
be  enforced  against  them.  Third.  That  it  has  not  been  per- 
formed, and  a  Court  of  Equity  will  not  relieve  against  a  con- 
dition precedent. 

First.  1  see  nothing  in  the  ao^reement  to  warrant  a  conclu- 
sion  that  George  was  to  have  an  estate  of  inheritance  only  in 
372 


FOURTH  CIRCUIT,  MAY,  1844.  409 


Chipman  v.  Thompson. 


case  he  survived  his  parents.  No  such  condition  is  annexed  to 
tlie  delivery  of  the  deed  by  Thompson,  who,  after  the  death  of 
the  parents,  in  case  George  performed  on  his  part,  was  to  de- 
liver it  to  him,  "his  heirs,  executors,  or  administrators."  Why 
were  George's  representatives  mentioned,  if  he  only  was 
to  receive  the  deed,  and  perforin  *the  conditions  on  [*409] 
whicli  it  was  to  be  delivered.  Tliey  were  bjund,  as  well  as 
George,  for  the  support  of  the  old  people.  But  why  were 
they  so  bound,  if  the  agreement  was  to  be  at  an  end  in  the  case 
George  did  not  survive  his  parents?  The  language  of  the 
agreement  is,  "  now,  if  the  said  George  A.  Chipman  shall  well 
and  truly  perform  on  his  part  all  the  conditions  of  this  agree- 
jnent,  the  said  deed,  on  the  death  of  the  said  Cyrus  Chipman 
and  Anna  Chipman,  is  to  be  delivered  to  the  said  George  A. 
Chipman,  his  heirs,  executors,  or  administrators."  Although 
a  performance  by  George,  and  not  by  his  representatives,  is 
here  mentioned,  yet  a  performance  by  them  is  not  excluded. 
On  the  contrary,  it  is  clearly  to  be  implied,  from  the  fact  that 
George  had  before  bound  them  in  express  terms;  and  the  agree- 
ment provides  ibr  the  delivery  of  the  deed  to  "  his  heirs,  exec- 
utors, or  administrators,"  as  well  as  himself.  If  they  had 
been  left  out  by  design,  where  George's  name  first  occurs  in 
this  part  of  the  agreement,  they  would,  undoubtedly,  have  been 
omitted  two  or  three  lines  lower  down,  where  both  he  and 
they  are  mentioned  in  connection  with  the  delivery  of  tlie 
deed. 

It  is  said  that  part  of  the  agreement  which  required  George 
to  conduct  himself  towards  his  father  and  mother  as  a  son 
ought  to  conduct  himself  towards  his  parents,  is  an  essential 
part  of  the  agreement,  and  of  the  condition  on  M-hich  the  deed 
was  to  be  delivered  to  Thompson.  This  is  true.  The  father 
not  only  had  a  right  to  expect  from  his  son  kinder  treatment 
in  his  old  age  than  from  a  stranger,  but  actually  made  it  a 
part  of  the  condition  on  which  the  deed  vesting  in  him  an 
estate  of  inheritance  in  the  farm,  was  to  be  delivered.  But  no 
sufficient  argument  can  be  drawn  from  this  circumstance,  to 
warrant  a  ditferent  construction  of  the  agreement  from  the  one 

373 


410  CASES  IN  CHANCERY. 

Chipman  v.  Thompson. 

already  given.  It  is  conceded  that  George  in  liis  life- 
[*-ilOJ  time  lived  up  *to  the  agreement   in   every   particular. 

His  death  before  his  parents  was  probably  looked  upon, 
when  the  agreement  was  entered  into,  as  an  event  by  no  means 
likely  to  occur;  yet  it  was  foreseen  the  old  people  might,  from 
some  cause  or  other,  wish  to  change  their  residence  and  live 
with  some  one  else;  and  George's  liability  for  their  support 
was  expressly  provided  for  in  that  event.  Nothing  could  show 
more  clearly  than  this,  that  the  personal  care  and  attention  of 
George,  though  one  of  the  inducements  that  led  to  the  agree- 
ment, was  by  no  means  the  only  or  principal  inducement. 

Second.  That  the  agreement  is  not  binding  on  the  heirs  of 
Anna  Chipman,  and  should  not  be  enforced  against  them. 
Complainant  does  not  seek  the  specific  performance  of  a  con- 
tract, made  w4th  Anna  and  her  husband,  for  the  purchase  of 
the  farm.  If  she  did,  it  might  well  be  asked  whether  such 
contract,  as  to  Anna,  was  not  void  or  voidable,  and  whether 
this  Court  would  decree  a  specific  performance  of  it  against 
her  heirs.  The  bill  asks  nothing  of  the  kind;  but,  on  the  con- 
trary, that  the  deed  executed  and  acknowledged  by  Anna  as 
well  as  her  liusband,  so  as  to  pass  her  estate,  may  be  delivered 
to  complainant  as  the  heir  at  law  of  the  grantee.  The  deed 
was  delivered  to  Thompson  as  an  escrow,  to  be  delivered  by 
him  to  George,  on  his  performing  his  agreement  with  his 
father.  Now,  can  there  be  any  doubt  it  was  competent  for  the 
father,  in  his  lifetime,  to  have  released  George  from  the  per- 
formance of  the  agreement,  or  to  have  consented  to  an  absolute 
deliver}^  of  the  deed?  I  think  not.  The  performance  of  the 
ao^reement  on  the  part  o  "  George  was  a  condition  precedent, 
and,  like  any  other  condition  precedent  might  have  been  released. 
Neither  Anna  in  her  liftime,  nor  her  heirs  after  her  death,  could 

have  objected,  for  she  was  not  a  party  to  tlie  agreement. 
[*411]  The  -only  interest  her  heirs  had  after  her  death,  in  the 

agreement,  was  a  contingent  right  to  the  estate  of  their 
mother  in  the  farm,  if  the  deed  was  not  absolutely  delivered 
with  the  consent  of  the  father  in  his  lifetime,  or  the  agree- 
ment performed  on  which  it  was  to  be  delivered  after  his  death, 

374 


FOURTH  CIRCUIT,  MAY,  1844.  412 


Chipman  r.  Thompson. 


or  so  fur  ])crforiucd  that  a  court  of  CMj^uity  would  compel  a 
delivery  of  it  against  bis  personal  representatives.  This  brings 
us  to  the  next  and  last  ebjection. 

Third.  That  the  agreement  has  not  been  performed,  and  a 
court  of  inquiry  will  not  relieve  against  a  condition  precedent. 
The  agreement  does  not  appear  to  have  been  strictly  kept  by 
Xewton,  the  guardian,  after  Cyrus  went  to  live  with  his  sou 
Samuel.  Up  to  this  time  there  is  no  complaint.  After  George's 
death,  Cyrus  continued  to  live  on  the  farm  with  his  daughter- 
in-law,  until  she  married  Xewton,  as  he  had  done  before,  but, 
soon  after  the  marriage,  he  became  dissatisfied,  and  went  to 
live  with  Samuel. 

A  court  of  equity  may  relieve  against  the  breach  of  a  con- 
dition precedent,  in  the  nature  of  a  penalty.  Wallis  v.  Crimes, 
1  Ch.  Ca.  89.  Mr.  Cruise  says:  "The  substantial  difference 
which  governs  courts  of  equity  in  cases  of  conditions,  is  not 
whether  the  condition  be  precedent  or  subsequent,  but  whether 
a  compensation  can,  or  cannot  be  made,"  2  Cruise  Dig.  40. 
The  Court  is  nut  bound  in  all  cases,  where  a  compensation  can 
be  made,  to  give  relief.  The  ])arty  asking  relief  may  have  so 
conducted  himself  as  to  have  lost  all  claim  to  its  interjxjsition. 
He  may  have  absolutely  refused  to  perform  the  contract,  or  he 
may  have  renounced  all  riglits  under  it.  But,  when  this  is  not 
the  case,  and  it  is  equitable  under  the  circumstances  that  reliet 
>hould  be  given,  it  is  competent  for  the  Court  to  give  it.  A 
circumstance  that  will  always  have  great  weight  with 
the  Court  is,  that  the  condition  has  been  *in  part  ])er-  [*412] 
formed;  that  the  party  has  don«  in  part  what  he  was 
bound  to  do  to  entitle  him  to  what  he  asks,  and  stands  ready  to 
make  good  the  deficiency.  In  EadeJiffx.  Warrintjfon,  12 
A^es.  R.  320,  a  specific  performance  of  a  contract  for  the  sale 
of  an  annuity  was  decreed  in  favor  of  a  vendor,  who  had  lost 
his  remedy  at  law  on  the  conti-act  by  his  own  default,  and  mIio 
would  have  lost  nothing,  had  relief  been  refused,  excej^t  the 
money  deposited  on  the  sale  by  the  vendee.  There  is  no 
good  reason  why  the  Court  should  not  relieve  against  the  breach 

375 


413  CASES  IN  CHANCERY. 

Chipman  v.  Thompson.  ■; 

of  a  condition  precedent,  where  it  would  against  a  condition 
subsequent. 

Geoi'ge  was  to  have,  for  supporting  iiis  parents,  the  personal 
property  and  a  lease  of  the  farm  for  three  lives,  and  after  their 
deaths  an  estate  of  inheritance  in  the  farm,  if  he  lived  up  to 
the  agreement.  The  inlieritance  was  as  much  a  part  of  the 
consideration  he  was  to  receive,  as  the  personal  property  or 
lease;  only,  instead  of  being  given  absolutely,  it  was  made  to 
depend  on  the  performance  of  the  agreement  on  his  part.  The 
condition  is  in  the  nature  of  a  penalty,  inserted  in  the  agree- 
ment to  secure  a  more  faithful  execution  of  it, 

Anna  Cliipman  received  her  support  for  her  lifetime,  and 
Cyrus  Chipman  his  for  nearly  live  years  and  a  half;  when  he 
went  to  live  with  his  son  Samuel.  After  Newton's  marriage 
with  the  widow,  he  took  charge  of  the  property,  and  went  on  to 
manage  it  as  his  own ;  which  appears  to  have  given  dissatisfac- 
tion to  the  old  gentleman,  and  was  his  reason  for  going  to  live 
with  Samuel.  It  was  not  on  account  of  any  harsh  or  improper 
treatment;  for  after  he  had  left,  he  admitted  he  had  been  well 
treated,  and  that  he  could  not  have  been  better  treated  by  his 
own  children.     Newton  did  not  refuse  to  provide  for  him.    "We 

find  him  at  one  time  paying  fifteen  dollars, — at  another 
[*413]  ^offering  to  pay  Samuel  thirty  dollars,  to  apply  on  his 

board, — at  another  making  arrangements  with  a  mer- 
chant to  let  him  have  cloth  for  a  coat  and  overcoat, — and 
then  paying  some  thirty  dollars  towards  his  doctor's  bill. 

I  am  satisfied  from  the  testimony  there  was  a  strong  desire, 
if  not  a  determination,  on  the  part  of  the  old  gentleman  and 
and  Samuel,  soon  after  the  former  went  to  live  with  the  latter, 
to  put  Newton  in  fault  if  possible,  and  an  end  to  that  part  of 
the  agreement  i-elating  to  the  deed.  The  bill  of  August  21st, 
1839,  for  four  weeks'  board,  &c.,  presented  to  Newton  for  pay- 
ment, shows  pretty  clearly  to  my  mind  a  determination  to 
make  him  either  pay  unreasonable  charges,  or  refuse  payment 
altogether.  The  latter  was  probably  the  object,  and,  to  obtain 
evidence  of  the  fact,  the  reason  why  the  bill  was  presented  by 
the  witness  Luce,  and  not  by  Samuel  himself     The  one  hun- 

376 


FOURTH  CIKCUIT,  MAY,  1844.  414 

Chipman  v.  Thompson. 

(Ired  dollars  demanded  by  Samuel  for  his  fVitlier  to  go  to  tlic 
State  of  jS^ew  York,  where  he  had  spent  the  preceding  winter, 
and  the  old  gentleman's  (objections  to  the  cloth,  that  it  was  nut 
tine  enough,  when  he  called  at  the  store  to  see  it,  are  adilitional 
circumstancesfrom  which  the  intention  of  the  parties  may  fairly 
be  inferred.  But  we  need  not  rely  on  these,  for  we  have  the 
positive  testimony  of  Cyrus  A.  Chipman,  one  of  the  sons,  on 
this  point.  lie  says  Kewton  offered  to  furnish  articles  tliathis 
father  wanted  ;  but  his  father  said  he  would  not  receive  anv- 
thing  from  him,  for  he  could  not  fu Hill  the  contract; — that  he 
Newton,  had  no  business  there  ; — referring  to  the  jjossession 
of  the  farm. 

Complainant  is  entitled  to  the  deed,  on  paying  what  is  due 
for  the  maintenance  of  her  grandfather,  after  he  went  to  reside 
with  Samuel, 

A  question  of  evidence,  and  a  preliminary  objection  made  on 
the  |)art  of  defendants,  must  not  be  passe<i  over  unnoticed. 

*The  bill  Hied  by  Cyrus  in  his  lifetime  against  Xew-[*414] 
ton,  and  subscribed  and  sworn  to  by  him,  to  obtain  an 
injunction,  is  admissible  as  evidence  for  complainant,  to  prove 
what  may  be  proved  by  the  declarations  of  Cyrus  ;  but  for  no 
other  purpose.  There  can  be  no  doubt  on  this  point,  when  the 
bill  is  verified  by  the  oath  of  the  party,  whatever  may  be  the 
rule  of  law  when  it  is  not  so  verified. 

It  was  insisted  on  the  argument  that  no  relief  could  be  given 
in  the  present  suit  against  defendants  as  the  heirs  of  Anna 
Chipman,  because  they  are  not  named  as  her  heirs  in  the  bill, 
but  as  heirs  of  Cyrus  Chipman,  The  case  made  by  the  bill  is 
against  the  heirs  of  Anna  Chipman,  The  fee  was  in  her,  and 
not  in  her  husband,  who  never  had  anything  more  than  a  life 
estate.  Defendants  do  not  deny  they  are  her  heirs,  nor  that 
whatever  interest  they  have,  they  derive  through  her.  On  the 
contrary,  they  insist,  as  her  heirs,  no  relief  can  be  had  acjainst 
them,  not  only  in  the  present  suit,  but  in  any  suit;  and,  failing 
in  this,  they  turn  round  and  say  it  cannot  be  had  in  the  present 
suit,  because  they  are  not  named  in  the  bill  as  her  heirs.  It 
must  be  recollected  complainant's  bill  is  filed  to  obtain  a  title 

377 


415  CASES  IN  CHANCERY. 

Chipman  r.  Thompson. 

to  tlie  farm,  and  not  to  charge  defendants  with  a  debt  of  the 
father  ;  for,  in  that  case,  it  would  be  necessary  to  show  they 
had  inherited  property  from  the  father  to  pay  the  debt,  and 
property  inherited  of  the  mother  woukl  not  make  them  liable 
to  the  creditor  of  the  fiither.  There  is  a  great  diiference  be- 
tween such  a  case  and  the  one  before  the  Court.  They  were 
made  parties  because  they  claimed  an  interest  in  the  farm.  If 
they  claimed  no  interest  in  the  farm,  there  was  no  necessity  for 
making  them  parties,  and  the  bill  for  that  reason  should  be 
dismissed  against  them  ;  but,  claiming  an  interest,  they  were 
properly  made    parties,  although  they  are   described   in   the 

bill  as  the  heirs  of  the  father  instead  of  the  mother. 
[*415]  *It  is  immaterial  through  which  of  their  ancestors  they 

derived  title,  so  far  as  the  necessity  existed  for  making 
them  parties.  If  defendants  wished  to  avail  themselves  of  the 
objection,  that  it  did  not  appear  on  the  face  of  the  bill  they 
had  any  interest  in  the  suit,  they  should  have  demurred.  It  is 
too  late  to  raise  it  on  the  hearing,  after  proofs  have  been  taken 
and  it  appears  to  the  Court  the  proper  parties  are  before  it. 

The  personal  representative  of  Cyrus  Chipman,  if  there  be 
one,  should  have  been  made  a  party,  as  he  would  be  entitled  to 
the  compensation  to  be  made  for  the  support  of  his  testator,  or 
intestate,  after  he  left  Newton's.  It  is  probable  there  is  none, 
as  Cyrus  does  not  appear  to  have  left  any  property  at  his  death. 
I  shall  therefore  direct  a  reference  to  a  Master  to  inquire 
whether  there  is  any  personal  representative,  and  if  there  be, 
complainant  is  to  have  leave  to  make  such  personal  representa- 
tive a  party  by  supplemental  bill.  If  there  be  none,  then  the 
Master  is  to  inquire  and  report  what  sum  is  due  to  Samuel  F. 
Chipman  for  supporting  his  father,  (it  appearing  he  resided 
with  Samuel,)  subsequent  to  July  26th,  1839,  or  to  any  other 
person,  or  for  necessary  medicines,  or  medical  attendance.  The 
testimony  already  taken  is  to  be  used  by  any  of  the  parties  on 
the  hearing  before  the  Master,  who  is  to  be  at  liberty  to  sum- 
mon such  witnesses  before  him,  and  take  such  further  testi- 
mony on  the  subject  as  he  may  think  proper,  and  to  make  his 
report  with  all  convenient  speed. 

378 


FIRST   CiKCL'lT,  JLWE,   18-14.  IIG 


Wallace  r.  Bunninff.     Hart  i\  McKeen. 


*  Wall  ACE  v.  Dunning  et  al.  pMlG] 

Where  a  complainant  parted  with  liis  interest  in  a  mortgage  before  answer,  it 
was  held  a  good  objection  to  the  suit.' 

Bill  to  foreclose  a  inurt<^a<>e. 

Before  answer,  and  after  tiling  his  bill,  complainant  assigned 
all  his  interest  in  the  uiortgag-e,  and  defendant  jmt  in  a  plea 
stating  that  fact. 

0.  D.  Richardson  in  snpport  of  the  plea. 
M.  L.  Drake ^  contra. 

The  Chancellor.  The  plea  must  be  allowed.  The  com- 
plainant has  put  himself  out  of  Court,  by  parting  with  his 
interest  in  the  mortgage.  Defendant  has  a  right  to  object  that 
the  partj  in  interest  is  not  before  the.  Court.  Mills  v.  Hoay^ 
7  Paige  E.  18;  Field  v.  Maghee,  5  Paige  E.  539. 


*Alvin  N.  Hart  v.  Silas  D.  McKeen,  Cephas  [*417] 
G.  Woodbury  and  Aaron  Goodrich. 

Different  causes  of  complaint,  of  the  same  nature,  and  between  the  same  par- 
ties, may  be  united  in  one  suit,  where  the  same  relief  is  asked ;  but  where 
the  causes  of  complaint  are  dissimilar  in  their  nature,  and  would  require 
different  decrees,  it  would  embarrass,  rather  than  expedite,  the  adminis- 
tration of  justice,  to  allow  them  to  be  united  in  the  same  bill.  ■^ 

A  bill  framed  Avith  a  double  aspect  must  be  consistent  with  itself.  It  should 
not  set  up  different  and  distinct  causes  of  complaint  that  destroy  each 
other. 

1  See  Webster  v.  Hitchcock,  11  Mich.  56. 
'  See  Ingersoll  v.  Kirby,  ante  65,  and  note. 

379 


418  CASES  IN  CHANCERY. 

Hart  v.  McKeen. 

Demukkek  for  multitariousness, 

June  lltli,  1830,  McKeen  executed  a  mortgage  to  Oliver  B. 
Hart,  who,  April  28tli,  1841,  assigned  the  mortgage  to  Alvin 
N.  Hart,  the  complainant.  December  25th,  1837,  McKeen 
executed  another  mortgage  to  the  defendant  Goodrich.  A.  N. 
Hart  acted  as  the  agent  of  Goodrich  in  taking  this  mortgage, 
and  the  bill  alleged  that,  soon  after  it  was  taken,  a  settlement  of 
accounts  took  place  between  Hart  and  Goodrich,  in  which  it, 
was  agreed  the  mortgage  should  become  the  propei'ty  of  Hart 
but,  through  inadvertency,  no  assignment  of  it  was  made  to 
Hart,  who  then  had,  and  always  had  had,  the  mortgage  and 
accompanying  note  in  his  possession.  May  2d,  1838,  McKeen 
executed  a  third  mortgage  to  the  defendant  Woodbury.  The 
bill  alleged  this  last  mortgage,  though  taken  in  the  name  of 
Woodbury,  was  for  the  benefit  or  use  of  Hart,  to  whom  it  in 
equity  belonged.  December  12th,  1842,  it  was  agreed  between 
Hart  and  McKeen  the  Woodbury  and  Goodrich  mortgages 
should  be  paid  by  the  conveyance  of  certain  real  estate  by 
McKeen  to  Hart,  and  on  the  twenty-third  day  of  that  month 
the  agreement  was'consummated  by  the  execution  and  delivery 
of  deeds  of  the  real  estate,  and  releases  of  the  mort- 
[*418]  gages.  After  the  papers  had  been  delivered,  *McKeen, 
being  acting  register  of  Lapeer  county  where  the  real 
estate  is  situated.  Hart  handed  the  deeds  to  him  to  be  recorded, 
which  he  agreed  to  do;  and,  when  subsequently  applied  to,  to 
know  whether  it  had  been  done,  he  said  it  had  not,  but  that  it 
should  be  done  immediately.  Pie  afterwards  said  they  had  not 
been  recorded,  and  he  did  not  intend  to  record  them;  when 
Hart  asked  him  to  rescind  the  agreement,  or  re-deliver  the  deeds 
to  him,  which  he  refused.  The  bill  further  stated  that  no  pro- 
ceedings had  been  had  at  law,  &c.,  that  there  was  a  large  sum  due 
on  the  O.  B.  Hart  mortgage,  and  also  upon  the  Woodbury  and 
Goodrich  mortgages,  if  they  had  not  been  discharged  by  the 
aforesaid  agreement  of  December;  and  prayed  that  McKeen 
might  be  decreed  to  have  the  deeds  of  conveyance  recorded,  and 
pay  what  was  due  on  the  O.  B.  Hart  mortgage,  or  re-deliver  to 
complainant  the  Woodbury  and  Goodrich  mortgages,  and  pay 
380 


FIRST  CIKCUIT,  JUNE,  184^.  410 

Hart  V.  McKeen, 

what  is  due  on  them,  and  in  default  tliereof,  be  foreclosed,  and 
for  other  and  further  relief.     McKeen  demurred. 

II.  iV.  Walker,  in  support  of  the  demurrer. 

^.  B.  Harrington,  contra. 

TuE  Chancellor.  Complainant  asks  a  decree  for  the  deeds 
delivered  by  him  to  McKeen  to  be  recorded,  which  McKeen 
had  previously  executed  and  delivered  to  him  in  payment  of 
the  Woodbury  and  Goodrich  mortgages.  He  also  asks  a  fore- 
closure of  the  O.  B.  Hart  mortgage.  This  mortgage  is  in  no 
way  connected  with  the  deeds.  It  did  not,  like  the  Woodbury 
and  Goodrich  mortgages,  enter  into  the  consideration  of  the 
deeds.  It  is  in  no  respect  whatever  connected  with  the  agree- 
ment of  the  twelfth  of  December.  Can  then  these  two  sepa- 
rate and  distinct  transactions  be  united  in  one  and  the  same 
bill? 

^Different  causes  of  complaint,  of  the  same  nature,  [*419] 
and  between  the  same  parties,  maj^  be  united  in  one 
suit,  where  the  same  relief  is  asked;  but  where  the  causes  of 
complaint  are  dissimilar  in  their  nature,  and  would  require 
different  decrees,  it  would  embarrass,  rather  than  expedite,  the 
administration  of  justice,  to  allow  them  to  be  united  in  the 
same  bill.     It  is  not  for  the  interest  of  parties  in  equity,  any 
more  than  at  law,  to  mix  up  diflerent  transactions  in  the  suit, 
having  no  affinity  to  each  other.     In  the  case  of  The  Attorney 
General  v.  Goldsmiths'  Company,  5  Sim.  R.  675,  the  Vice 
Chancellor  says,  "  I  apprehend  that,  besides  what  Lord  Redes- 
dale  has  laid  do^vn  on  the  subject,  there  is  a  rule  arising  out  of  • 
the  constant  practice  of  the  Court;  and  that  it  is  not  compe- 
tent, where  A.  is  sole  plaintiif,  and  B,  is  sole  defendant,  for  A. 
to  unite  in  his  bill  against  B.  all  sorts  of  matters  wherein  they 
may  be  mutually  concerned.     If  such  a  mode  of  proceeding 
were  allowed,  we  should  have  A.  filing  a  bill  against  B.  praying 
to  foreclose  one  mortgage,  and,  in  the  same  bill,  praying  to  re- 
deem   another,  and  asking  many  other   kinds  of  relief  with 

381 


420  CASES  m  CHAJs'CERY. 

Hart  V.  McKeen. 

respect  to  many  other  subjects  of  complaint.  Calvert  on  E(j. 
87,  88,  89;  Johnson  v.  Johnson,  1  J.  C.  E.  163,  If  Hart  and 
McKeen  were  the  only  parties,  the  two  canses  of  complaint, 
viz.  the  deeds  and  the  O.  B.  Hart  mortgage,  are  such  as  sliould 
not  be  united  in  one  bill.  They  are  unlike  each  other  in  every 
respect,  and  call  for  different  decrees.  If  complainant  should 
succeed,  there  would  be  one  decree  that  McKeen  deliver  over 
the  deeds  which  he  wrongfully  retains,  and  another  that  he  pay 
what  is  due  on  the  O.  B.  Hart  mortgage,  or  in  default  thereof 
that  the  mortgaged  premises  be  sold. 

Complainant  has  framed  his  bill  with  a  view  to  foreclose  the 
Woodbury  and  Goodrich  mortgages,  should  he  fail  in  ob- 
[*4:20]  taining  a  decree  for  the  deeds.  As  a  foreclosure  bill,  it  *is 
clearly  multifarious,  for  Woodbury  has  no  interest  in 
the  Goodrich  mortgage,  and  Goodrich  no  interest  in  the  Wood- 
bury mortgage,  and  neither  of  them  any  interest  in  the  O.  B. 
Hart  mortgage. 

Waiving  the  question  of  multifariousness,  could  complain- 
ant have  a  decree  of  foreclosure  of  the  Woodbury  and  Good- 
rich morto'aofes,  should  he  fail  as  to  the  deeds?  The  bill  sets 
forth  the  mortgages ;  it  also  states  they  formed  the  considera- 
tion of  the  deeds  executed  and  delivered  by  KcKeen  to  Hart 
on  December  twenty-third,  and  that  they  were  then  canceled. 
Can  complainant  in  the  same  bill  set  up  two  causes  of  com- 
plaint, one  of  which  destroys  the  other?  Will  the  rules  of 
pleading  allow  him  in  one  part  of  the  bill  to  allege  those  mort- 
gages have  been  paid,  and  in  another,  that  they  have  not  been 
paid?  To  reconcile  these  conflicting  statements,  and  make  the 
bill  consistent  with  itself,  I  must  look  upon  that  part  of  the 
bill  setting  forth  the  mortgages  as  intended  merely  to  show  tlie 
consideration  of  the  agreement  of  December,  and  of  the  deeds 
subsequently  executed  in  pursuance  of  it;  and  upon  that  part 
of  the  prayer  which  asks  a  foreclosure  of  these  mortgages,  in 
case  complainant  should  fail  in  regard  to  the  deeds,  as  wholly 
inconsistent  with  the  case  made  by  the  bill.  "A  proper  case 
for  a  bill  with  a  double  aspect,"  says  Chancellor  Walworth,  "is 
where  the  complainant  is  in  doubt  whether  he  is  entitled  to 

382 


FIKST  CIRCUIT,  JUNE,  1844.  421 


Story  V.  Story. 


one  kind  of  relief  or  another  upon  tlie  facts  of  his  case  as 
stated  in  the  bill.  In  such  a  case  he  may  frame  his  prayer  in 
the  alternative;  so  that  if  the  Court  is  against  him,  as  to  one 
kind  of  relief  prayed  for,  he  may  still  he  entitled  to  obtain  any 
other  relief  to  which  he  is  entitled,  under  the  other  part  of  the 
alternative  prayer.  So  also  where  complainant  is  entitled  to 
relief  of  some  kind,  upon  the  general  facts  stated  in  his 
hill,  if  the  nature  of  the  relief  to  which  he  is  entitled  Me-  [M^iJ 
pends  upon  the  existence  or  non-existence  of  a  particular 
fact,  or  circumstance,  which  is  not  within  his  knowledge,  but 
which  is  known  to  the  defendant,  he  may  allege  his  ignorance 
as  to  such  fact,  and  call  for  a  discovery  thereof."  Zoyd  v. 
Brewster,  4  Paige  R.  537;  Colt  v.  Ross,  2  Paige  R.  396.  A 
bill  framed  with  a  double  aspect  must  be  consistent  with  itself. 
It  should  not  set  up  different  and  distinct  causes  of  complaint 
that  destroy  each  other. 

Demurrer  allowed  and  bill  dismissed. 


Mary  Maeia  Story  v.  Martin  Story. 

In  a  suit  by  or  agrainst  a  wife,  for  a  divorce,  if  she  have  no  separate  property 
of  her  own,  the  Court,  when  necessary,  on  petition,  will  grant  her  temporary 
alimony  pending  the  suit,  and  require  her  husband  to  advance  money  to 
enable  her  to  prosecute  her  suit,  or  make  her  defense.' 

The  affidavit  of  the  husband,  denying  the  ground  on  which  the  wife  asks  a 
divorce,  is  no  answer  to  an  application  for  alimony  during  the  suit,  but 
may  be  roiid  to  aid  the  Court  in  the  exercise  of  its  discretion  as  to  the 
amount  to  be  allowed. 


*  As  to  when  ahmony  may  be  allowed,  see  Bishop  c.  Bishop,  17  Mich..  211; 
Cooper  r.  Cooper,  id.,  205;  Chaftee  r.  Chaffee,  15  id.,  184. 

As  to  amount  of,  see  Brown  r.  Brown,  22  Mich.,  242. 

Alimony  is  allowable  on  appeal.  Goldsmith  i\  Goldsmith,  6  Mich.,  285. 
See  also.  Chaffee  r.  Chaifee,  14  id.,  463;  Zeigenfuss  v.  Zeigenfuss,  21  id.,  414; 
Goodman  v.  Goodman,  26  id.,  417. 

3S3 


422  CxVSES  m  CHANCERY. 

Story  V.  Story. 

Petition  for  temporary  alimony,  and  for  money  to  carry  on 
a  suit  by  complainant  against  lier  husband  for  a  divorce  from 
the  bonds  of  matrimony,  on  the  ground  of  cruelty.  Defendant's 
affidavit,  denying  the  cliarge  of  cruelty,  was  read  in  opposition 
to  the  motion. 

tT.  F.  Joy^  in  support  of  the  motion. 
J.  M.  Howai'd^  contra. 

The  Chancellor.  In  a  suit  by  or  against  a  wife  for  a 
divorce,  where  she  has  no  separate  property  of  her  own 
[*422]  *to  support  herself  and  enable  her  to  carry  on  her  suit, 
or  make  her  defense,  and  her  husband  has  property,  the 
Court  will  compel  him  to  make  a  suitable  allowance  for  her 
maintenance  pending  the  suit,  and  to  furnish  her  with  the 
means  of  employing  counsel.  Mix  v.  Mix^  1  J.  C.  R.  108; 
Denton  v.  Denton^  id.  364;  Wood  v.  Wood.,  2  Paige  R.  109. 
But  for  this  wise  provision  of  law,  a  wife,  without  relatives  or 
friends  to  protect  her  rights,  would  be  deprived  of  the  means 
of  applying  to  the  judicial  tribunals  of  the  country  for  redress, 
when  her  rights  were  invaded  by  her  husband ;  and  of  support- 
ing herself  pending  the  litigation. 

Defendant's  affidavit  denying  the  cruelty,  is  no  answer  to  the 
application,  but  it  may,  and  should,  be  received  to  aid  the  Court 
in  the  exercise  of  a  sound  discretion,  in  fixing  the  sum  to  be 
allowed.  WrigU  v.  WrigU,  1  Edw.  Cli.  R.  62;  Smith  v. 
Smithy  id.  255;  Stanford  v.  Stanford,  id.  317;  Poynter  on 
Marr.  and  Div.  250,  251. 

As  the  petition  does  not  state  what  particular  property  de- 
fendant has,  or  what  his  pecuniary  circumstances  are,  I  shall 
direct  a  reference  to  a  Master  to  inquire  into  them,  and  to  re- 
port what  amount  ought  to  be  allowed  to  complainant. 

Motion  granted 


884 


FIRST  CIRCUIT,  JUNE,  1844.  423 

Bishop  V.  Williams. 


*Jesse  p.  Bishop  v.  Ezra  Williams.       [===423] 

When  a  Master  has  commenced  proceedings  under  an  order  of  reference, 
they  should  be  completed  bj-  him ;  and  the  party  obtaining  the  order  can- 
not transfer  the  proceedings  to  another  Master  to  be  completed. 

Judgment  creditor's  bill.  Motion  for  an  attachment  against 
defendant  for  not  appearing  before  John  S.  Abbott,  one  of  the 
Masters  of  the  Court,  to  submit  to  an  examination  on  oath 
touching  his  property,  and  to  make  an  assignment  thereof  to  a 
receiver,  in  j^ursuance  of  the  Master's  summons  duly  served  on 
him  for  that  purpose.  The  motion  was  opposed  on  the  ground 
proceedings  had  been  had  on  the  order  for  the  appointment  of 
a  receiver,  before  E.  Taylor,  another  Master,  before  whom  de- 
fendant had  appeared  and  submitted  to  several  examinations, 
when  the  proceedings  were  transferred  to  Mr.  Abbott  without 
defendant's  consent,  or  any  order  of  Court  for  that  purpose. 

A.  Davidson,  in  support  of  the  motion. 

^.  B.  Harrington,  contra. 

The  Chancellor.  The  motion  must  be  denied.  The  pro- 
ceedings under  an  order  of  reference  should  be  completed  by 
the  Master  before  whom  they  are  commenced.  If,  for  any 
cause,  this  cannot  be  done,  they  may,  by  an  order  of  Court,  on 
a  special  motion  made  for  that  purpose,  be  transferred  to 
another  Master  to  be  completed. 

Motion  denied. 


YoL.  L— 25  385 


424  CASES  IN  CHANCERY. 


Bailey  v.  Mui-phy. 


[*424]  *JoH]sr  H.  Bailey   and   Geoege  B.  Storm  v. 
Seba  Murphy,  John  J.  De  Graff  et  al. 

A  bank  may  take  a  mortgage  for  a  debt  due  to  it,  with  seven  per  cent,  interest, 
(that  being  the  legal  rate  of  interest,)  notwithstanding  it  is  prohibited  by 
its  charter  from  taking  "  more  than  six  per  cent,  per  annum  in  advance, 
on  its  loans  or  discounts.''* 

Bill  to  foreclose  a  mortgage. 

The  bill  states  that  Murphy,  on  May  1st,  1839,  became  and 
was  justly  indebted  to  the  Bank  of  River  Raisin,  in  the  sum 
of  $1,200,  and  that,  to  secure  the  same,  he  on  that  day  executed 
a  bond  and  mortgage  to  the  bank,  in  the  penal  sum  of  §2,400, 
conditioned  for  the  payment  of  $1,200  in  one  year,  with  interest 
at  the  rate  of  seven  per  cent,  per  annum.  That  the  bond  and 
mortgage  were  given  to  the  bank  as  security  for  a  debt  j?r6V«- 
ously  contracted,  in  the  regular  course  of  business.  That,  No- 
vember 20th,  1839,  the  bank  assigned  the  bond  and  mortgage 
to  Robert  McClelland,  who  "  afterwards  to  wit  on  25  Febru- 
ary 1839,"  assigned  the  same  to  complainants.  De  Graff  de- 
murred to  the  bill. 

T.  Homey n,  in  support  of  the  demurrer, 
A.  D.  Fraser,  contra. 

The  Chancellor.     The  mortgage  was  executed  to  the  Presi- 
dent, Directors  and  Company  of  the  Bank  of  River  Raisin.    The 
nineteenth  section  of  the  charter  of  the  bank  is  in  these  words: 
"  That  the  said  corporation  shall  not  take  more  than  six  per  cent- 
um in  advance,  on  its  loans  or  discounts^    The  mortgage  is  con- 
ditioned for  the  payment  of  seven  per  cent,  interest;  and  it  is  in- 
sisted the  bank,  by  the  aforesaid  nineteenth  section  of  its 
p425]  charter,  is  *prohibited  from  making  such  a  contract,  and 
that  the  morto-afje  for  that  reason  is  null  and  void.    The 
Bank  of  Chillicothe  v.  Sioayne  et  al.,  8  Ohio  R.  285,  is  cited  in 
support  of  the  proposition.     That  was  a  clear  case  of  discount. 
386 


rmST  CIECUIT,  JUNE,  I844.  426 

Bailey  r.  Murpby. 

In  the  present  case  tlie  mortgage  was  given  to  secure  a  pre-ex- 
isting debt  due  to  the  bank,  and  not  for  a  loan  or  discount,  on 
which  only  six  per  cent,  interest  could  be  taken. 

A  loan  or  discount  is  an  advance  of  money  to  be  repaid  at  a 
future  day.  When  the  interest  is  taken  in  advance,  it  is  a  dis- 
count; but  when  it  is  to  be  paid  at  the  exjDiration  of  the  credit, 
or  quarterly,  or  yearly,  where  an  extended  credit  is  given,  it  is 
a  loan.  A  mortgage  for  a  pre-existing  debt  is  neither  a  loan 
nor  a  discount.  It  wants  the  chief  ingredient  of  a  loan  or  dis- 
count, viz:  an  advance  of  money. 

The  nineteenth  section  of  the  charter  extends  to  loans  and 
discounts  only.  In  regard  to  all  other  contracts  relating  to  in- 
terest, the  bank  stands  on  an  equality  with  individuals.  V>\- 
the  ninth  section,  it  may  take  real  estate  in  payment  of  debts 
previously  contracted  in  the  course  of  its  dealings,  or  purchase 
it  at  sales  on  judgments  obtained  for  such  debts.  There  can 
be  no  doubt  of  its  right  to  sell  the  real  estate  so  acquired,  and 
to  take  a  mortgage  for  the  whole  or  part  of  the  purchase 
money,  jjayable  at  a  future  day,  with  seven  per  cent,  intei-est. 
that  being  the  legal  rate  of  interest.  It  would  not  be  a  dis- 
count or  loan,  and  there  is  nothing  in  the  charter  prohibitinu- 
it.  In  an  action  on  a  note  discounted  by  the  bank,  it  may  rt-- 
cover,  as  damages,  the  legal  rate  of  interest,  although  by  its 
charter  it  is  limited  to  a  less  per  centum  on  loans  and  discounts. 
It  was  so  decided  in  the  case  of  The  United  States  Bctnl:  \. 
Chapin^  9  AYend.  It.  471.  It  is  the  law,  and  not  the  contract, 
that  gives  the  riglit  to  legal  interest  in  such  a  case,  after  a 
breach  of  the  contract.  The  loan,  by  the  terms  of  the 
^contract,  is  at  an  end;  and  the  money  is  detained  [*42G] 
against  the  will  of  the  part}'  advancing  it.  I  see  no 
reason,  therefore,  Avhy  a  bank,  in  such  circumstances,  mav  not 
give  time,  and  take  secui'ity  for  both  principal  and  interest, 
when  the  sole  object  perhaps,  in  giving  time,  is  to  obtain  se- 
curity for  the  debt.  Had  the  legislature  intended  to  restrict 
the  bank  to  six  per  cent,  interest,  in  all  cases,  it  is  but  reason- 
able to  presume  they  would  have  used  more  appropriate  terms 
than  the  words  "loans  or  discounts"  to  express  their  intention. 

387 


42T  CASES  m  CHANCERY. " 

How  r.  Camp;  Elclred  r.  Camp;  Kelso  v.  Camp. 

Another  objection  urged  by  defendant  is,  that  complainants, 
claim  nnder  an  assignment  execnted  by  K.  McClelland  in  Feb- 
ruary, 1839,  of  a  mortgage  execnted  in  May,  1839.  The  bill 
states  the  bank  assigned  to  McClelland  November  20th,  1839, 
and  that  McClelland  "  afterwards,  to  wit,  on  25th  February, 
1839,"  assigned  to  complainants.  It  then  stated  that  the  as- 
signment was  acknowledged  by  McClelland  on  25th  February, 
1841.  The  year  1839  is  undoubtedly  a  clerical  error,  and 
should  be  1841.  The  bill,  however,  is  sufficient,  for  it  states 
McClelland  assigned  to  complainants  after  the  bank  had 
assigned  to  him,  and  the  year  1839  may  be  rejected  as  sur- 
plusage. 

Demurrer  overruled. 


[*427]  Calvin  W.  How,  Fisher  How,  William  Bag- 
ley,   Solomon   Wareiner,   Bushrod    Birch, 
Henry    S.    Whittemore,    Henry    Suydam,    and 
Isaac  H.  Reed,  v,  Samuel  Camp,  Bolville  Shum- 
w^AY  and  Abner  W.  Camp. 

Daniel  Eldred  et  al.  -z/.The  same  Defendants. 
James  Kelso  et  al.  v.  The  same  Defendants. 

a  debtor  bas  a  right  to  prefer  one  creditor  or  class  of  creditors  to  another,  and 
on  assigning  his  property  for  the  benefit  of  creditors,  may  lawfully  re- 
quire a  particular  creditor  or  class  of  creditors  to  be  paid  in  full,  although 
his  other  creditors,  in  consequence  thereof,  may  nor  receive  anything.^ 

The  denial  of  frand  by  a  defendant,  in  his  answer,  is  not  conclusive  upon  the 
Court,  if  the  facts  and  circumstances  of  the  case  are  such  as  irresistibly  to 
lead  the  mind  to  a  different  conclusion.  When  fraud  is  denied,  it  is  not  to 
be  inferred  from  slight  circumstances;  but  a  denial  of  it  does  not  preclude 
inquiry,  or  disarm  the  Court  of  its  power,  when,  from  the  pleadings  and 
proofs,  it  is  satisfied  of  its  existence.'' 

^  See  Town  v.  Bank  of  River  Raisin,  2  Doug.,  530. 

*  Fraud  will  not  be  presumed,  but  must  be  proved.      Robert  v.  Morrin,  27 

388 


THIRD  CIRCUIT,  JUNE,  1844.  428 


How  V.  Camp;  Eldred  v.  Camp;  Kelso  v.  Camp. 


Where  a  conveyance  was  actually  and  not  only  constructively  fraudulent,  and 
a  bill  was  filed  by  creditors  to  set  it  aside,  and  the  grantee  was  compelled 
to  account  for  moneys  received  by  him  out  of  the  property,  it  was  held 
that  he  should  be  credited  with  all  taxes  and  improvements  made  by  him, 
but  lor  no  advances  made  to  his  grantor,  unless  the  mOney  was  used  by 
the  latter,  before  complainants  filed  their  bill,  to  pay  debts  due  from  him 
at  the  time  he  made  the  fraudulent  conveyance.^ 

The  eoniplaiiiants  in  the  first  above  entitled  cause,  on  Octo- 
ber 17th,  1838,  recovered  the  following  judgments  in  the  Cir- 
cuit Court  of  Hillsdale  countj,  against  the  defendants,  Samuel 
Camp  and  Boviile  Shumwav,  as  partners:  Calvin  W.  How  and 
Fisher  How,  a  judgment  for  $1,984.97;  William  Bagley,  a 
judgment  for  $871.80;  Henry  Sujdam  and  Isaac  H.  Reed,  a 
judgment  of  $0-22.37;  and  Solomon  AV^arriner,  Bushrod  Birch, 
and  Henry  S.  Whittemore,  a  judgment  for  $1,123.80.  April 
17th,  1839,  writs  of  fieri  facias  were  issued  on  the  sev- 
eral judgments  returnable  *on  the  third  Tuesday  of  [*428] 
October  following,  on  which  day  tliey  were  returned  un- 
satisfied by  the  sheriff  of  Calhoun  county,  in  which  county 
defendants  resided.  January  27th,  1840,  complainants  filed 
their  bill  setting  forth  the  judgments,  executions,  and  sheriff's 
return;  that  the  judgments  remained  unsatisfied;  and  that 
complainants  had  reason  to  believe,  and  did  believe,  Samuel 
Camp  had  equitable  interests  of  the  value  of  a  hundred  dollars 
and  more,  which  could  not  be  reached  by  execution.  The  bill 
further  stated  that,  on  the  sixth  day  of  August,  1838,  Samuel 
Camp,  to  secure  to  his  own  use,  and  to  hinder,  delay,  and  de- 
fraud complainants  and  his  other  creditors,  conveyed  real  estate 
described  in  the  bill,  to  his  brother  Abner  W.  Camp;  and  that 
he,  at  the  same  time,  for  a  like  purpose,  assigned  to  his  brother 


Mich.,  306;  The  People  v.  Lott,  36  111.,  447.  There  is,  however,  no  standard 
of  evidence  of  fraud;  but,  like  any  other  fact,  it  is  to  be  proved  by  any  facts  or 
circumstances  which  satisfy  the  mind  of  its  existence.  It  may  be,  and  gener- 
erally  is,  inferred  from  circumstances,  and  cannot  often  be  proved  in  any 
other  way.  O'Donnell  v.  Segar,  2-5  Mich.,  367.  See,  also,  Duffield  v.  Delancy, 
36  111.,  258;  Smith  v.  Brown,  MMich.,  455. 
'  See  Taylor  v.  Snyder,  posi,  490. 

389 


429  CASES  IN  CHANCERY. 

How  t'.  Camp;  Eldred  v.  Camp;  Kelso  v.  Camp. 

a  promissory  note  and  mortgage  for  $5,000,  dated  February 
2Gt]i,  1836,  particularly  described  in  the  bill. 

Boville  Shumway  did  not  appear,  and  the  bill  was  taken 
against  him  p?'o  confesso.  The  Camps  appeared,  and  put  in  a 
joint  and  several  answer.  They  admitted  the  judgments,  &c., 
but  denied  Samuel  Camp  had,  at  the  time  of  filing  the  bill, 
equitable  interests,  things  in  action,  or  other  property,  of  the 
value  of  $100.  They  admitted  the  conveyance  of  the  real 
estate,  and  the  assignment  of  the  note  and  mortgage  on  the 
sixth  day  of  August,  1838,  but  denied  all  fraud,  or  intent  to 
hinder,  delay,  or  defraud  complainants,  or  other  creditors  of 
Samuel  Camp;  and  stated  the  deed  and  assignment  were  made 
for  tlie  purpose  of  enabling  Samuel  Camp  to  pay  his  individual 
creditors.  They  stated  the  consideration  of  the  deed  and 
assignment  was  $7,000,  for  which  Abner  executed  to  his  brother 
his  fourteen  promissory  notes  of  $500  each,  payable  with  inter- 
est, as  follows :  one  in  one  year,  one  in  two  years,  one  in 
i*429]  three  years,  one  in  four  years,  one  in  five  "^years,  one  in 
six  years,  two  in  seven  years,  one  in  eight  years,  two  in 
nine  years,  one  in  ten  years,  one  in  eleven  years,  and  one  iu 
twelve  years.  That  all  of  the  notes  had  been  paid  by  advances 
of  money,  reut,  and  the  like,  except  the  last  five,  which  were 
assigned  by  Samuel  Camp,  January  22d,  1840,  to  E.  Smith 
Lee,  for  the  benefit  of  his  individual  creditors.  Tliat  Samuel 
Camp  owed  individual  debts,  at  the  time  of  the  aforesaid  con- 
veyance and  assignment  to  his  brother,  to  the  amount  of  $4,000, 
and  that  he  had  paid  about  $600  of  these  debts  with  the  money 
received  of  his  brother.  The  individual  debts  mentioned  in  a 
Schedule  attached  to  the  assignment  to  Lee,  amounted  to 
$1,992.75.  Eeplications  were  filed  and  testimony  taken;  but 
the  facts  are  so  fully  commented  on  in  the  opinion  of  the  Court, 
as  to  render  it  unnecessary  to  notice  them  more  fully  in  the 
statement  of  the  case. 

G.  Woodruffs  for  complaints. 

A.  Pratt ^  for  defendants. 
390 


THIRD  CIRCUIT,  JUNE,  184^.  430 

How  v.  Camp;  Eldred  v.  Camp;  Kelso  v.  Camp. 

The  Chancellor.  The  Camps  deny  all  fraud,  and  all  inten- 
tion to  defraud  complainants,  or  other  creditors  of  Samuel 
Camp,  in  the  most  full  and  explicit  terms;  and  state  the  object 
of  the  sale  was  to  enable  Samuel  Camp  to  provide  for  the  pay- 
ment of  his  individual  creditors  out  of  his  individual  property, 
and  to  prevent  its  being  sacrificed  for  the  payment  of  the  part- 
nership debts  of  Camp  and  Shumway,  to  pay  which  the  part- 
nership property  had  been  assigned.  A  debtor  has  a  right  to 
])refer  one  creditor  or  class  of  creditors  to  another,  and,  on 
assigning  his  pro])erty  for  the  benefit  of  creditors,  may  lawfully 
retpiire  a  particular  creditor,  or  class  of  creditors,  to  be  paid  in 
full,  although  his  other  creditors,  in  consequence  thereof, 
may  not  receive  anything.  There  was  nothing,  *tlierefore,  ['"iSO] 
improper  in  Samuel  Camp's  selling  liis  individual  prop- 
erty to  pay  his  individual  creditors,  iu  preference  to  the  part- 
nership creditors  of  Camp  and  Shumway.  "Was  the  sale  to  his 
brother  made  for  that  |)urpose,  or  fur  another  and  different  pur- 
]H»se?  Was  it  designed'for  the  benefit  of  his  individual  cred- 
itors, or  intended  as  a  cloak  to  cover  up  his  property,  and  keep 
it  from  his  creditors?     This  is  the  point  to  be  determined. 

The  denial  of  the  fraud  by  defendants,  in  their  answer,  is 
not  conclusive  upon  the  Court,  if  the  facts  and  circumstances 
of  the  case  are  such  as  irresistibly  to  lead  the  mind  to  a  differ- 
ent conclusion.  When  fraud  is  denied,  it  is  not  to  be  inferred 
from  slight  circumstances;  but  a  denial  of  it  does  not  preclude 
infp\iry,  or  disarm  the  Court  of  its  power,  when,  from  the 
}>leadings  and  proofs,  it  is  satisfied  of  its  existence. 

The  alleged  object  of  the  sale  was  to  pay  individual  creditors, 
iu  preference  to  partnership  creditors.  This  might  have  been 
eft'ected  in  two  ways; — by  an  assignment  of  the  property  in 
trust  for  creditors  generally,  giving  the  individual  creditors  a 
]u-eference  over  the  partnership  creditors,  or  by  a  cash  sale  of 
so  imich  of  the  property  as  was  necessary  to  pay  the  individ- 
ual creditors.  One  or  other  of  these  modes,  supposing  the 
individual  creditors  too  numerous  to  be  conveniently  secured 
bv  separate  mortgages,  would  have  suggested  itself  to  the  mind 
of  almost  any  honest  debtor.     But  neither  was  adopted  in  the 

391 


431  CASES  IN  CHANCERY. 

How  V.  Camp;  Eldred  v.  Camp;  Kelso  v.  Camp. 

present  case,  or  appears  to  have  been  so  much  as  thought  of  by 
the  Camps,  altliough  what  they  did  was  done,  (to  use  the  lan- 
guage of  the  answer,)  "  for  the  honest  and  ho7ia  fide  purpose 
of  enabling  Samuel  Camp  to  pay  and  satisfy  his  individual 
creditors."  They  devised  a  way  entirely  new  and  unheard  of, 
for  such  a  purpose; — one  as  well  calculated  to  hinder  and 
[*J:31]  delay  creditors  in  the  collection  of  their  *just  dues,  as 
could  well  be  invented  by  the  ingenuity  of  an  insolvent 
debtor; — one  which,  if  sustained  b}^  a  court  of  justice,  would  en- 
able a  debtor  in  failing  circumstances  to  place  his  property 
beyond  the  reach  of  his  creditors,  for  an  almost  indefinite  length 
of  time,  if  not  secure  the  enjoyment  and  benefit  of  it  to  him- 
self and  family. 

The  individual  debts,  according  to  the  answer,  amounted  to 
about  $-4,000;  and  how  is  it  proposed  to  secure  them?  In 
neither  of  the  ways  above  suggested.  Neither  does  Samuel 
Camp  make  known  his  wishes  to  his  individual  creditors;  he 
arives  them  no  intimation  of  what  he  is  about  to  do;  he  does  not 
consult  with  them  as  to  what  he  should  do,  or  how  it  should 
be  done,  or  what  would  be  most  acceptable  to  them.  He  is 
notoriously  insolvent;  the  firm  of  Camp  and  Shumway,  of 
which  he  was  a  partner,  had  already  made  an  assignment  for 
the  benefit  of  the  partnership  creditors;  and  he,  as  the  answei' 
states,  being  fearful  the  partnership  creditors  would  seize  on 
his  individual  property,  and  that  nothing  would  be  left  for  his 
individual  creditors,  goes  to  the  State  of  New  York,  where  he 
has  a  brother  residing,  and  conveys  all  his  property  to  him  for 
$7,000,  and  takes  in  payment  his  brother's  fourteen  promissory 
notes,  payable,  with  interest,  in  from  one  to  twelve  years,  one 
each  year,  except  that  two  are  made  payable  in  seven  years, 
and  two  in  nine  years.  No  money  is  paid  down, — not  a  dollar. 
No  mortgage  is  taken  on  the  land  conveyed,  or  other  security 
exacted  for  the  payment  of  the  notes,  the  last  of  which  would 
not  be  due  under  twelve  years,  and  none  of  them  under  a  year. 
If  the  notes  had  been  paid  as  they  became  due,  and  the 
money  had  been  faithfully  applied  by  Samuel,  it  would  have 
required  eight  years  to  pay  $4,000.     Will  the  law  allow  an  in- 

392 


THIRD  CIRCUIT,  JUNE,   1844.  432 

How  V.  Camp;  Eldrecl  v.  Camp;  Kelso  v.  Camp. 

solvent  debtor,  under  the  pretext  of  giving  a  preference 
to  certain  creditors,  to  make  such  a  disposition  *of  his  ['^432] 
l)i-operty?  If  it  will,  courts  of  law,  with  regard  to  the 
collection  of  debts,  might  as  well  be  abolished  at  once;  for  no 
debtor  will  permit  his  property  to  be  sold  on  execution,  if  he 
may  sell  it  to  a  friend  on  any  length  of  credit  that  may  be 
agreed  on  between  them,  and  thereby  jjrevent  its  falling  into 
the  hands  of  his  creditors.  But  what  was  to  become  of  the 
$3,000  remaining  after  the  individual  debts  were  paid?  It  was 
not  to  go  to  the  creditors  of  Camp  and  Shumway;  for  the  rea- 
son assigned  for  selling  the  pro])erty  was  to  ])revent  its  being 
taken  in  execution  by  the  partnership  creditors. 

The  deed  of  the  real  estate  to  Abner  is  not  signed  by  Sam- 
uel's wife.  It  may  be  said  it  was  executed  in  the  State  of  New 
York.  That  is  true,  but  she  is  not  named  in  it,  and  it  does 
not  appear  she  has  ever  released,  or  been  asked  to  release  her 
inchoate  riglit  of  dower.  The  deed,  though  executed  and  ac- 
knowledged in  the  State  of  New  York,  was  not  delivered  there 
but  in  Detroit.  It  bears  date  on  the  sixth  of  August,  was  ac- 
knowledged on  the  nineteenth,  and,  three  or  four  days  thereaf- 
ter, was  delivered  at  Detroit,  where  the  sale  was  consummated. 
Stopping  here,  the  sale  should  be  declared  fraudulent  and  void 
as  to  creditors.  Notwithstanding  the  answer  denies  any  inten- 
tion to  hinder,  delay,  or  defraud  creditors,  it  must  be  obvious 
to  everj'^  one  such  would  be  the  effect  of  the  deed  and  assign- 
ment, if  sustained.  It  seems  to  me  almost  impossible,  for  men 
entertaining  anj'thing  like  correct  notions  of  the  moral  obliga- 
tions existing  between  debtor  and  creditor,  to  come  to  a  dif- 
ferent conclusion. 

The  conduct  of  the  parties  has  not  been  of  such  a  character, 
since  the  sale,  as  to  dispel  the  cloud  hanging  over  it.  Samuel 
denies  that  he  has,  since  then,  been  in  possession  of  all  the  land 
conveyed,  but  admits  his  possession  of  the  two  dwelling 
houses  and  store,  under  an  agreement  *made  at  the  p'433] 
time.  By  the  agreement  he  was  to  have  the  dwelling 
houses  and  store,  until  the  following  May.  There  was  no 
agreement  as  to  the  rent,  except  that  he  was  to  pay  what  should 

393 


AU  CASES  IX  CHANCERY. 

How  V.  Camp;  Eldred  v.  Camp;  Kelso  v.  Camp. 

be  riglit.  He  lived  in  one  of  tlie  houses,  and  the  other  house 
and  stoi'e  were  in  possession  of  tenants  paying  rent,  wliich  he 
was  to  receive.  A  house  to  live  in  was  necessary,  but  the  re- 
ceipt of  the  rent  for  the  other  buildings  by  him,  is  a  suspicious 
circumstance.  He  was  to  have  the  rents  as  the  lessee  of  his 
brother.  They  were  not  to  be  received  by  him  as  agent,  nor  were 
they  reserved  by  him  when  he  sold  out.  The  dwelling  houses 
and  store,  I  take  it  for  granted,  were  the  only  parts  of  the 
property  that  were  at  the  time  productive.  There  is  no  posi- 
tive testimony  upon  this  point,  but  it  is,  [  tbink,  the  only  in- 
ference to  be  drawn  from  the  whole  case. 

About  the  eighteenth  of  October,  nearly  three  months  and  a 
half  after  the  sale,  it  was  agreed  the  rent  should  be  at  the  rate 
of  S500  a  year,  over  and  above  the  taxes,  which  were  to  be  paid 
by  Samuel.  At  this  time  it  was  also  agreed  Samuel  should 
have  the  premises  for  one  year  from  the  lirst  of  May,  1839,  a 
lease  was  executed,  and  the  year's  rent  paid  in  advance,  by  de- 
livering up  the  $500  note  payable  in  two  years.  This  lease  has 
not  been  produced  by  defendants.  On  the  seventeenth  day  of 
the  same  month,  complainants  obtained  their  judgments. 

About  this  time  Abner  advanced  to  Samuel  $2,400  in  cash, 
and  canceled  a  debt  of  $500  cash  advanced  for  him  a  few  days 
before,  and,  in  consideration  thereof,  Samuel  gave  up  seven  of 
the  $500  notes. 

On  the  tenth  of  September,  1839,  the  first  $500  note  was 
paid.  This  note,  though  the  first  to  become  due,  was  not  paid 
until  eight  of  the  notes  falling  due  long  after  it,  had  been  taken 
up.  The  ansM^er  states  it  was  paid  as  follows:  $100  in 
[*434]  cash,  a  note  for  $150,  dated  July  *12th,  1839,  payable  in 
a  year,  with  interest,  and  the  rent  of  the  premises  up  to 
May  1st,  1839.  The  rent  due  on  the  first  of  May,  at  $500  a 
year,  being  nine  months,  lacking  six  days,  was  $367,  which, 
added  to  the  $250,  cash  and  note,  would  make  $617,  instead  of 
$538,  the  amount  of  the  $500  note  including  interest. 

With  the  $2,400  cash,  Samuel  paid  about  $600  of  his  indi- 
vidual debts,  and  the  balance  was  spent  in  supporting  himself 
and  family.     Four  thousand  five  hundred  dollars  of  the  notes 

394 


TIIIHD  CIIIClIT,  JUXE,  1844.  43.: 


How  V.  Camp;  Eldretl  v.  Camp;  Kelso  v.  Camp. 

were  used  up  in  paving  8600  of  individual  debts,  and  support- 
in'>-  himself  and  family  a  year  and  nine  months. 

On  the  twenty-second  of  January,  1840,  Samuel  assigned  the 
remaining  five  notes  to  E.  Smith  Lee,  for  the  benefit  of  his  in- 
dividual creditors.  This  was  after  the  Eldreds  had  filed  their 
])ilL 

The  $5,000  mortgage  was  foreclosed  at  law  by  advertisement, 
and  the  mortgaged  premises,  consisting  of  seven  eighty-acre 
lots,  bid  off  by  Abner,  December  28th,  1838,  for  what  was  due 
on  the  mortgage.  Three  of  these  lots  were  aftewards  sold  by 
him,  July  9th,  1839,  to  Samuel  Sharpsteen,  for  $1,350;  and 
oil  the  eleventh  day  of  the  same  month,  he  mortgaged  two  of 
tlu!  village  lots  in  Marshall  to  Jonathan  Hedges,  for  $2,400. 

On  May  4th,  1840,  he  appointed  Ilerraan  Camp,  a  young 
man,  but  twenty-one  years  of  age,  and  a  son  of  Samuel  Camp, 
his  attorney,  to  sell,  and  convey  or  lease,  the  whole  or  any  part 
of  the  premises,  and  to  make,  execute,  and  acknowledge  deeds, 
iScc.  On  May  14th,  1841,  a  year  after,  when  Herman  was  ex- 
amined as  a  witness,  no  account  had  been  rendered  by  him  to 
his  uncle,  but  he  stated  he  expected  to  account  to  him  for  all 
moneys  he  had  received  and  paid  out.  He  had,  in  the 
mean  time,  paid  his  *father  $162  of  the  rents,  for  ma-  [*435] 
terials  furnished,  and  repairs  made  by  him  on  the 
premises. 

A  mortffaire,  executed  bv  Samuel  and  his  wife  to  one  Cleve- 
land,  a  few  months  previous  to  the  sale,  on  a  part  of  the 
jn-emises,  Samuel  caused  to  be  discharged  in  the  summer  of 
1839. 

The  answer  states  the  whole  consideration  was  $7,000.  The 
deeds  state  a  consideration  of  $6,000,  and  the  assignment  of 
the  mortgage  a  consideration  of  $5,000,  making  together 
$11,000. 

Other  circumstances  might  be  mentioned,  but  I  do  not  deem 
it  necessary,  as  I  entertain  no  doubt  of  the  true  character  of  the 
transaction,  and  of  my  duty  to  declare  the  sale  fraudulent  and 
void  as  to  the  creditors  of  Samuel  Camp. 

A  decree  must  be  entered  delaring  the  deed  and  assignment 

395 


436  CASES  K^  CHAKCEKY. 

How  V.  Camp;  Eldred  v.  Camp;  Kelso  v.  Camp. 

to  Abner  "VY.  Camp,  fraudulent  and  void,  as  against  complain- 
ants, except  as  to  tlie  premises  sold  to  Sliarpsteen,  and  the 
Hedges'  mortgage,  which  are  not  to  be  aiFected  by  the  decree. 
And  a  receiver  must  be  appointed,  with  the  usual  powers  of  a 
receiver  on  a  judgment  creditor's  bill,  to  whom  Abner  AY.  Camp 
must  convey,  by  deed,  the  premises  convej^ed  to  him  by  Sam- 
uel, and  the  premises  described  in  the  mortgage  assigned  to 
him,  except  the  part  sold  to  Sharpsteen,— the  decree  to  vest 
the  receiver  with  the  title  of  the  premises  to  be  conveyed,  and 
to  stand  in  the  place,  and  have  the  effect  of  such  conveyance, 
until  a  conveyance  is  duly  executed  and  delivered.  Possession 
of  the  premises  must  be  delivered  to  the  receiver,  and  Abner 
W,  Camp  must  account  to  the  receiver  before  a  Master,  who 
must  make  out  and  state  the  account,  for  the  purchase  money 
received  of  Sliarpsteen,  with  interest,  and  for  the  amount  due 

at  the  time  of  taking  the  account,  on  the  Hedges'  mort- 
[*436]  gage,  and  the  rents  and  profits  received  *by  him  or  his 

agent,  and  be  credited  with  all  taxes  paid  and  improve- 
ments made  by  him,  but  for  no  advances  of  money  to  Samuel, 
unless  the  money  was  used  by  Samuel,  before  complainants  filed 
their  bill,  to  pay  debts  due  from  him  at  the  time  he  conveyed 
to  Abner.  So  far  as  such  payments  are  concerned,  the  convey, 
ance  to  Abner  has  not  operated  as  a  fraud  on  creditors,  or  to 
tlie  prejudice  of  the  rights  or  preference  acquired  by  complain- 
ants on  filing  tlieir  bill,  and  should  therefore  be  allowed  in  the 
account.  But  no  other  advances  of  money  to  be  allowed;  for 
this  is  not  a  case  of  constructive,  but  of  positive  fraud  against 
creditors,  in  which  the  grantee  is  particeps  criminis.  AYlien 
that  is  the  case,  the  rule  is  not  to  allow  the  grantee,  in  taking 
an  account,  for  any  advances  made  to  the  grantor,  as  it  would, 
to  the  extent  of  such  allowance,  be  giving  effect  to  the  fraud, 
and  remove  the  chief  obstacle  to  third  persons'  assisting  debtors 
in  defrauding  their  creditors,  by  indemnifying  them  against  pe- 
cuniary loss  in  case  of  detection.  Sands  v.  Codwise,  4  J.  R. 
536,  598;  Boyd  v.  Bimlap,  1  J.  C.  R.  482;  Bemi  v.  Smit/i,  2 
Mass.  R.  252.     And  Abner  Camp  must  pay  the  amount  found 

396 


TIIIKD  CIKCUIT,  JUNE,  1844  437 

Cutter  V.  Griswold. 

due  from  hi  in  to  the  receiver.     Complainants  to  receive  their 
costs. 

The  same  decree  must  be  entered  in  the  other  two  causes. 


=nViLLTAM  T.  Cutter,  William  F.  Bulkley,  [=-=437] 
Jonathan  Hunt,  and  Charles  Ely  v.  Jer- 
ome B.  Griswold. 

\Vhere  a  deed  of  real  estate  was  taken  in  the  name  of  a  son  who  was  a  minor, 
to  keep  it  from  the  creditors  of  the  father,  and  it  was  afterwards  sold  by 
the  sheriff  on  an  execution  against  the  father,  the  son  was  decreed  to  re- 
lease to  the  purchasers  at  the  sheriff's  sale.^ 

Kvei-y  voluntary  conveyance  by  a  parent  to  a  child,  is  not  fraudulent  against 
creditors,  but,  when  made  in  good  faith  by  way  of  advancement,  and 
abundant  property  is  retained  by  the  parent  to  pay  all  his  debts,  it  is  good 
against  existing  as  well  as  subsequent  creditors.^ 

In  October,  1840,  Henry  D.  Garrison  obtained  a  judgment 
against  Eber  Griswold,  for  $425.45  damages,  and  $41.69  costs, 
in  the  Circuit  Court  for  the  county  of  Bemen,  on  a  note  exe- 
cuted to  Garrison  in  1838,  after  Eber  Griswold  had  married  the 
widow  Pool,  by  llussey,  Sanger  an-d  Mason,  and  guarantied  by 
Eber  Griswold,  for  a  debt  due  from  the  widow  Pool  to  Garrison 
previous  to  her  marriage  with  Eber  Griswold.     Execution  was 

'  See  Elliott  v.  Horn.  10  Ala.,  348;  Ewell's  Lead.  Cases  on  Infancy  and  Cov- 
erture, 75. 

"See  Beach  v.  White,  post,  495;  Herschfeldt  v.  George,  6  Mich.,  466  ;  May- 
nard  v.  Hoskins,  9 id.,  489;  Moritz  v.  Hoffman,  35  111.,  553  ;  Gridley  r.  Wat- 
son, 53  id.,  186;  Sweeney  r.  Damron,  47  id.,  4-50;  Bridgford  r.  Riddell,  55 
id.,  261.  Pratt  v.  Myers,  56  id.,  2:);  Mitchell  r.  Byms,  67  id.,  522;  Emerson 
r.  Bemis,  69  id.,  537;   Patrick  v.  Patrick,  77  id.,  555. 

As  to  when  liable  to  be  impeached  by  subsequent  creditors,  see  Moritz  v. 
Hoffman,  supra  ;  Mixell  r.  Lutz,  34  111.,  382  :  Wooldridge  v.  Gage,  68  id., 
157  ;  Philhps  v.  North,  77  id.,  243  ;  Beach  v.  White,  post,  495;  Herschfeldt 
V.  George,  supra  ;  Keeler  r.  Ulrich,  32  Mich.,  88, 

397 


•iBS  CASES  m  CHANCEKT. 

Cutter  I'.  Griswold. 

taken  out,  and  lot  number  two,  on  H.  B.  &  C.  W.  Hoflfman's 
addition  to  the  village  of  l^iles,  was  levied  on  by  the  sheriff, 
and,  on  the  the  3d  day  of  Julv  ,  1841,  sold  by  him  to  complain- 
ants for  $500,  they  being  the  purchasers  at  the  sheriff's  sale. 
The  lot  w^as  purchased  of  Robert  Griffin  by  Eber  Griswold,  in 
April,  1839,  and  the  deed  taken  in  the  name  of  the  defendant 
a  minor  son  of  Eber  Griswold.  The  bill  was  filed  against 
Eber  Griswold  and  Jerome,  and  charged  the  deed  was  taken 
in  Jerome's  name  to  hinder,  delay,  and  defraud  the  creditors  of 
Eber  Griswold,  &c.  Eber  Griswold  died  without  having  put 
in  an  answer,  when  the  suit  abated  as  to  him,  and  the  usual 
answer  was  put  in  by  the  guardian  ad  litem  of  Jerome,  a 
replication  filed,  and  testimony  taken. 

[*438]     ^C.  Dana,  for  complainants. 

J.  S.  Chipmaii,  for  defendant. 

The  Chancellor.  The  lot  in  question  w^as  conveyed  to 
Jerome  by  Griffin,  in  consideration  of  other  lands  conveyed 
at  the  same  time  to  Griffin,  by  Eber  Griswold,  the  father  of 
Jerome.  The  purchase  was  made  by  Eber  Griswold,  and  the 
consideration  was  paid  by  him,  but  the  deed  was  taken  in  the 
name  of  his  son,  who  then  was,  and  still  is,  a  minor. 

Every  voluntary  convej-ance  by  a  father  to  his  child,  cannot 
be  avoided  by  the  creditors  of  the  father.  When  made  in  good 
faith  by  way  of  advancement,  and  abundant  means  are  retained 
by  the  father  for  the  payment  of  his  debts,  the  conveyance, 
though  voluntary,  is  good  against  existing  as  w^ell  as  subse- 
quent creditors.  Va^i  WycJc  v.  Seward,  6  Paige  E,.  62  ; 
Bank  of  United  States  v.  Haustnan,  id.,  526  ;  Seward  v. 
Jackson,  8  Cow.  11.  406  ;  Jackson  \.  Post,  15  Wend.  R.  588; 
Salmon  v,  Bennett,  1  Day  Conn.  E,.  IST.  S.  525. 

For  aught  that  appears,  Eber  Griswold  parted  with  all  his 
property  to  Griffin,  in  consideration  of  the  deed  to  Jerome. 
The  Garrison  debt  was  tlien  in  existence  ;  Jerome  w^as  but 
sixteen  years  of  age;  and  Eber  Griswold  took  immediate  pos- 
session of  the  lot,  and  resided  on  it  till  his  death.  The  legal 
398 


THIRD  CIRCUIT,  JUNE,  1844.  439 

Kimljall  r.  Ward. 


inference  to  l>e  drawn  from  these  facts  is,  that  the  deed  was 
taken  by  El)er  Griswold  in  Jerome's  name,  to  keep  the  property 
from  his  creditors.  The  evidence  introduced  for  the  purpose 
of  sliowing  the  property  deeded  to  Griffin  was  held  by  Eber 
Griswold  in  trust  for  Jerome,  does  not  establish  that  fact. 

A  decree  must  be  entered  declaring  the  deed  from  Griffin  to 
Jerome  was  taken  in  the  name  of  the  latter  to  hinder, 
delay,  and  defraud  the  creditors  of  Eber  Griswold  ;  *and  [*439] 
Jerome  must,  within  six  months  after  he  comes  of  age, 
and  is  served  with  a  copy  of  the  decree,  execute  and  deliver  to 
complainants  a  quit-claim  deed  of  the  premises  in  question, 
unless  within  the  said  six  months  he  show  good  cause  why  he 
should  not  be  bound  by  the  decree.  The  complainants  must 
be  let  into  immediate  possession  of  the  property,  and,  until 
such  quit-claim  deed  is  executed  and  delivered,  or  cause  shown, 
the  decree  to  stand  in  the  ])lace,  and  have  all  the  effects,  of 
such  release,  on  being  recorded  by  the  register  of  deeds  of  the 
county  where  the  premises  are  situated. 


Kimball  v.  Ward  et  al. 

Where  an  answer  on  oath  is  waived,  it  must,  notwithstanding,  be  signed  by 
defendant. 

Complainant  having  waived  an  answer  on  oath,  defendants' 
solicitor  put  in  several  answers  for  his  clients,  subscribing  their 
names  to  the  answers.  The  cause  afterwards  being  brought  on 
for  hearing  on  jdeadings  and  proofs,  complainant's  solicitor,  on 
an  affidavit  stating  he  had  just  discovered  the  defendaTits' names 
had  been  subscribed  to  their  answers  by  their  solicitor,  and  nf»t 
by  theniselvos,  moved  to  have  them  taken  from  the  files,  and 
tlu"  bill  taken  as  confessed. 

Bacon,  in  support  of  the  motion. 

Dana,  contra.  399 


440  CASES  IN  CHAXCEEY. 


Garlinghouse  v.  Dixon. 


The  Chancellopw.  The  defendants  sliould,  themselves,  have 
subscribed   their    names  to  the   answers.     The  waiver 

[«440]  -^^of  the  oath  was  no  waiver  of  an  answer  subscribed  bv 
them.      Deiiison  v.  Bassford,  7  Paige  E.   370.     The 

motion  is  granted,  unless  defendants  sign  the  answers  put  in 

for  them  by  their  solicitor,  and  pay  five  dollars  costs,  within 

sixty  days. 


Joseph   Garlinghouse,  Wheeler  Keed  and  Amos 
Dixon  v.  John  Dixon  and  James  B.  Welles. 

A  mistake  in  a  deed,  or  other  wiitten  instrument,  when  proved  to  the  satisfac- 
tion of  the  Court,  is  a  good  ground  for  refusinsr  relief  to  which  comphxin- 
ant  would  otherwise  be  entitled.^ 

In  August,  1836,  John  Dixon,  of  Ontario  county,  ]^ew  York, 
employed  Seneca  Hale,  of  Lenawee  county,  Michigan,  to  pur- 
chase government  lands  for  him,  and  left  with  Hale  $1,800,  for 
which  he  took  a  receipt.  On  December  14th,  1836,  John  Dixon 
assigned  all  his  property,  real  and  personal,  to  complainants,  in 
trust  for  his  creditors.  The  assignment,  among  other  things, 
stated  Dixon  was  the  owner  of,  and  had  the  legal  or  equitable 
estate  in,  divers  tracts  and  parcels  of  land  in  Michigan,  which, 
liaving  been  purchased  by  his  agents,  who  had  not  furnished 
liim  with  a  description  or  statement  of  such  purchases,  he  was 
unable  to  particularize  or  describe;  but  meaning  and  intending 
tlie  said  lands,  and  all  his  estate  and  interest  therein,  should 
pass  by  his  assignment  to  complainants,  he  thereby  granted, 
bargained,  sold,  assigned,  conveyed,  and  confirmed  to  complain- 
ants, all  and  singular  the  lands,  tenements,  hereditaments,  and 

estate  whatsoever,  owned  by,  or  belonging  to  him,  or  in 
[*441]  which  he  had  any  right  or  ^interest  whatsoever,  in  law 

or  equity,  in  severalty,  or  jointly  with  any  other  person 

•  See  Norris  v.  Hurd,  ante,  102. 
400 


SECOND  CIRCUIT,  JULY,  1844.  442 

Garlinghouse  v.  Dixon. 

or  persons,  wlierever  the  same  might  be,  in  Michigan,  and  all 
the  right,  title,  interest,  ])ro])erty,  and  estate,  whatsoever,  in 
law  or  equity,  of,  in,  or  to  any  such  lands  or  real  estate,  and 
all  vouchers,  receipts,  contracts,  agreements,  certificates  or  se- 
curities whatsoever,  relating  or  in  any  wise  appertaining  to  the 
same.  On  January  27th,  1837,  at  the  request  of  J.  Dixon, 
Hale  conveyed,  and  procured  to  he  conveyed  by  one  Brown, 
four  hundred  and  eighty  acres  of  land  to  Welles,  the  same  hav- 
ing been  purchased  with  the  money  mentioned  in  the  aforesaid 
receipt.  In  August,  1838,  complainants  tiled  their  bill  fur  a 
conveyance  of  these  lauds  by  AVelles  to  them,  as  trustees  under 
the  assi2:nment,  chars-iu":  that  Welles  had  notice  of  the  assign- 
ment  to  them,  when  the  lands  were  conveyed  to  him  by  Hale 
and  Brown. 

The  defendants  answered.  John  Dixon  stated  in  his  answer 
that  the  assignment  to  complainants  was  not  intended  to  em- 
brace the  mone}^  mentioned  in  the  receipt  of  Ilale,  or  the  land 
that  had  been  j)urchased  with  the  money;  and  that  it  was  so 
understood  by  complainants  and  himself  at' the  time,  and  that 
instructions  to  that  effect  were  given  to  the  person  who  drew 
the  assignment.  He  further  stated,  that  he  had,  previous  to 
his  assignment  to  complainants,  parted  with  his  interest  in  the 
receipt  to  Bobert  Dixon,  John  Cowman,  and  the  defendant, 
Welles.  When  he  left  the  money  with  Hale,  he  was  indebted  to 
AVelles  as  trustee  of  the  estate  of  Plyn  Weller,  in  the  sum  of 
$859.27,  money  collected  by  him  for  Welles  on  notes  belong- 
ing to  the  AVeller  estate.  And,  soon  after  his  return  from 
Michigan  to  the  State  of  Xew  York,  where  he  resided,  he  re- 
ceived $800  of  Ilobert  Dixon,  and  $500  of  John  Cowman,  and 
and  agreed  with  them  that  they  should  share  j^^'o  rata, 
in  the  lands  to  be  purchased  with  the  $1,800;  *and  that,  [*442] 
from  that  time  forward,  he  held  the  receipt  in  trust  for 
Robert  Dixon,  John  Cowman,  and  the  defendant  AYelles. 
That,  on  December  9th.  1830,  he  made  the  following  assign- 
ment on  the  back  of  the  receipt:  "  I  hereby  assign,  set  over, 
and  transfer  this  instrument,  for  the  use  and  benefit  of  those 
for  whom  I  hold  it  in  trust.     Dated  this  ninth  day  of  Decem- 

VoL.  I.— 26  401 


443  CASES  IN  CHANCERY. 

Garlingliouse  v.  Dixon. 

ber,  1836.  John  Dixony  Previous  to  this,  he  had  made  a 
memorandum  at  the  bottom  of  the  receipt,  in  these  words; 
"  Of  the  above  named  money,  eight  hundred  dollars  belongs  to 
Kobert  Dixon,  live  hundred  dollars  to  John  Cowman,  and  the 
residue  to  other  persons  for  whom  it  was  received  by  me  in 
trust."  That  Welles  was  not  named  in  the  memorandum,  as 
the  $859.27  belonged  to  him  as  trustee,  and  he,  Dixon,  was  in- 
debted to  him,  individually,  on  a  separate  account  for  money 
borrowed,  and  did  not  intend  to  connect  this  last  debt  with  the 
receipt.  In  January  following  the  assignment  to  complain- 
ants, Dixon  was  in  Michigan,  and  saw  Hale,  and  informed  him 
of  the  assignment  to  complainants,  that  the  receipt  was  not 
embraced  in  it,  and  that  the  money  left  with  him,  or  the  lands 
purchased  with  it,  belonged  to  Robert  Dixon,  John  Cowman, 
and  defendant  Welles.  He  afterwards  saw  Welles,  and  gave 
him  the  same  information,  and  thereupon  the  lands  mentioned 
in  the  bill  were  conveyed  to  Welles,  and  other  lands  to  Cowman 
and  Robert  Dixon. 

The  answer  of  Welles  set  up  the  same  facts,  but  was  on  in- 
formation and  belief  only,  except  as  to  the  indebtedness  of 
Dixon,  and  the  conveyance  of  the  land. 

Replications  were  filed,  and  testimony  taken.  John  Dixon 
was  examined  as  a  witness  on  behalf  of  Welles,  and  Mr.  Sib- 
ley, the  attorney  who  drew  the  assignment,  on  behalf  of  com- 
plainants. 

[*443]      *^.  N.  Walker,  for  complainants. 

The  memorandum  at  the  foot  of  the  receipt  is  not  signed, 
and  states  that,  of  the  money  mentioned  in  the  receipt, 
$800  belonged  to  Robert  Dixon,  $500  to  Cowman,  and  the  resi- 
due to  other  persons  from  whom  it  was  received  by  Dixon  hi 
trust.  Dixon  never  received  any  money  from  AWiles  in  trust. 
Dixon  says  in  his  deposition,  he  set  apart  this  interest  in  the 
receipt  to  satisfy  Welles  for  money  he  had  collected  for  him  as 
trustee  of  the  estate  of  Plyn  Weller; — in  other  words,  to  pay 
a  debt.  The  assignment  of  the  receij)t  on  December  ninth  is 
402 


SECOND  CIRCUIT,  JULY,  1844.  444 

Garlinghouse  v.  Dixon. 

yor  the  use  and  benejit  of  the  persons  for  lohom  he  held  th<- 
'money  in  trust.  Before  any  persons  can  claim,  besides  Robert 
Dixon  and  Cowman,  any  interest  in  tlie  receipt,  as  against  com- 
plainants, they  must  show  that  a  portion  of  the  money  men- 
tioned in  the  receipt  was  actually  received  from  tliem  in  trust 
by  Dixon.  Welles  shows  no  such  thing,  but  the  reverse.  If 
the  assignment  of  the  receipt  is  to  be  regarded  in  the  light  of 
a  contract,  and  "Welles  as  a  party  to  it,  it  is  inoperative  as 
against  the  complainants.  Dixon  testifies  Welles  had  no  notice 
that  the  assignment  under  which  he  now  claims  had  been 
made,  until  Dixon  informed  him  of  it,  in  the  winter  of  1837. 
It  was  not,  then,  so  much  as  a  valid  agreement,  binding  on 
the  parties  at  the  time  the  general  assignment  was  executed. 
It  wanted  the  assent  of  Welles,  to  make  it  a  contract  binding 
on  the  parties.     12  J.  R.  100;  3  J.  R.  534;  7  J.  R.  470. 

G.  Miles,  for  defendants. 

It  M'as  not  the  intention  of  the  parties  to  include  the  Hale 
receipt,  or  the  lands  purchased  by  him,  in  the  assignment  to 
complainants.  The  testimony  of  Dixon,  and  Mark  Sibley,  wlio 
drew  the  assignment,  is  conclusive  on  this  point.  The 
assignment  of  the  receipt  on  December  *ninth,  passed  p444] 
Dixon's  interest  in  the  money  for  which  the  receipt  had 
been  given,  and  his  equitable  interest  in  the  land  purchased. 

The  Chancellor.  The  assignment  to  complainants  was  not 
intended  to  embrace  the  Hale  receipt,  or  the  land  purchased 
with  tlie  $1,800.  The  evidence  is  full  and  conclusive^on  this 
point.  The  receipt  is  not  mentioned  in  the  schedule  of  prop- 
erty, and  Dixon's  testimony  is  clear  and  explicit.  He  testifies 
to  admissions  made  by  two  of  complainants  since  tlie  assign- 
ment, and  to  a  conversation  that  took  place  before  the  assign- 
ment, as  well  as  to  what  occurred  at  the  time  it  was  drawn  up 
and  executed.  Sibley,  who  drew  it,  says,  when  tliat  part  of  it 
which  relates  to  the  real  estate  in  Michigan  was  read  over  to 
Dixon,  he  expressed  some  doubts  whether  it  -would  not  pass 
lands  which  had  been  purchased  in  his  name  with  money  that 

403 


Uo  CASES  m  CHANCERY. 

Garlinghouse  v.  Dixon. 

had  been  deposited  with  him.  Siblej  told  him  it  would  not, 
because  he  was  not  the  owner  of,  and  had  no  interest  in,  lands 
which  had  been  purchased  with  such  trust  funds;  and  that  such 
lands  would  belong  to  the  depositors,  in  whosesoever's  name 
the  certihcate  of  purchase  might  have  been  taken.  He  had  be- 
fore told  Siblej  the  lands  purchased  with  the  money  left  with 
Hale  were  not  to  be  included  in  the  assignment,  and  that  the 
money  had  been  deposited  with  him  by  Robert  Dixon,  Cow- 
man and  Welles,  the  defendant,  in  trust.  The  two  former  had 
deposited  money  with  him  after  his  return  from  Michigan,  on 
an  agreement  they  should  share  pro  rata  in  the  purchases  to 
l>e  made  by  Hale;  and  he  was  indebted  to  AVelles  as  trustee  of 
the  Weller  estate,  for  money  he  had  received  belonging  to 
that  estate.  To  carry  out  his  agre^nent  with  the  form- 
er, and  secure  "Welles  as  trustee,  he  first  made  the  mem- 
orandum at  the  foot  of  the  receipt,  and  afterwards 
[-445]  *the  assignment  of  the  receipt,  on  December  9th,  1S36, 
five  days  before  his  assignment  to  complainants  for  the 
benefit  of  his  creditors.  Considering  himself  thenceforward  as 
having  parted  with  all  his  interest  in  the  receij^t,  and  as  holding 
it  in  trust  for  Robert  Dixon,  Cowman  and  Welles,  it  is  not  at 
all  surprising  he  should  have  stated  to  Sibley,  when  he  in- 
formed him  he  lield  the  receipt  in  trust,  that  the  money  had 
been  left  with  him  for  the  purchase  of  lands.  This  was  literally 
true  in  regard  to  Robert  Dixon  and  Cowman,  for  one  had  paid 
him  $800,  and  the  other  $500,  to  be  invested  in  land.  He 
spoke  with  reference  to  this  money,  and  did  not  enter  into  the 
history  of  the  receipt;  while  Sibley  understood  him  to  speak 
of  the  identical  money  left  with  Hale,  and  gave  it  as  his  opinion 
that  the  money  in  Hale's  hands,  or  the  lands  purchased  with 
it,  would  not  pass  by  the  deed  of  assignment  to  complainants. 
Accidents  and  mistakes  are  a  fruitful  source  of  equity  juris- 
diction, and  the  Court  is  frequently  called  on  to  give  relief 
ao-ainst  them.  Hence,  a  mistake  in  drawing  a  deed,  or  any 
other  written  instrument,  when  proved  beyond  all  question,  to 
the  satisfaction  of  the  Court,  is  a  good  ground  for  refusing 
relief  to  a  party  who  would  otherwise  be  entitled  to  it.     Gilles- 

404 


SECO]S'D  CIRCUIT,  JULY,  1844.  440 

Benedict  r.  Thompson. 

jne  w  Moon^  2  J.  C.  R.  585.  I  have  no  doubt  the  deed  of  as- 
sif^nmeiit  was  not  intended  by  the  parties  to  embrace  tlie 
receipt,  or  hinds  purchased  with  tlie  money  for  which  it  was 
given;  and  shall  therefore  dismiss  complainants'  bill  with  costs. 
Bill  dismissed,  with  costs. 


*Lewis   Benedict   v,  William   E.  Thompson  [*446] 

et  ux. 

A  rehearing  will  not  be  granted  where  a  party,  by  lapse  of  time,  has  lost  his 
right  to  an  appeal. 

Petition  by  Thompson  for  a  rehearing. 

The  petition  stated  that,  on  the  15th  day  of  August,  1840, 
complainant  filed  his  bill  of  complaint  for  the  foreclosure  of  a 
mortgage;  that  defendants  were  duly  served  with  process,  and 
appeared,  but  failed  to  answer  the  bill,  which  was  taken  as  con- 
fessed; and  that,  on  the  31st  day  of  August,  1842,  a  decretal 
order  was  made,  adjudging  and  decreeing,  among  other  things, 
that  all  and  singular  the  mortgaged  premises,  or  so  much  there- 
of, at  two-thirds  their  appraised  value,  as  should  be  sufficient 
to  satisfy  the  amount  due,  be  set  off  by  metes  and  bounds, 
under  the  direction  of  a  Master,  by  three  disinterested  free- 
holders of  the  county  of  Washtenaw,  where  the  premises  were 
situated,  in  pursuance  of  an  act  entitled  "  An  act  to  provide  for 
the  transfer  of  real  estate  on  execution,  and  for  other  purposes." 
The  petitioners  were  advised,  and  believed,  the  decretal  order,  in 
the  part  above  set  forth,  and  in  all  its  parts  which  directed  the 
appraisal  and  setting  oif  of  the  premises  to  complainant,  accord- 
ing to  the  aforesaid  act,  was  erroneous,  against  the  express 
agreement  of  the  parties  to  the  mortgage,  and  against  law  and 
equity;  and  that  the  decree  should  have  directed  a  sale  of  the 
mortgaged  premises,  according  to  the  usage  and  practice  of  the 

405 


447  CASES  IN  CHANCEEY. 

Benedict  v.  Thompson. 

Court  previous  to  the  passage  of  the  act.  The  petition  further 
stated  that  complainant,  on  August  26th,  1843,  caused  the 

mortgaged  premises  to  be  appraised  and  set  olf,  by  metes 
[*447]  and  bounds,  &c.,  and  that  complainant,  on  *the  second 

day  of  September  following,  accepted  the  premises  as 
appraised  and  set  off. 

W.  A.  Fletcher,  in  support  of  the  motion. 

J.  Kingsley,  contra. 

The  Chancellor.  Since  the  decision  of  the  Supreme  Court 
of  the  United  States,  in  Bronson  v.  Kinzie,  1  Howard  R.  311, 
the  act  Tinder  which  the  decree  was  entered,  requiring  mort- 
gaged premises,  as  well  as  real  estate  taken  on  execution,  to  be 
set  off  by  metes  and  bounds  at  two-thirds  their  appraised  value, 
has  been  held  to  be  unconstitutional  and  void  as  to  previous 
contracts,  and  not  binding  upon  this  Court.  A  rehearing 
should,  therefore,  be  granted,  if  it  can  be  done  consistently  with 
the  established  rules  of  law. 

The  object  of  a  rehearing  is  to  save  the  expense  and  delay  of 
an  appeal,  and  to  give  the  Court  an  opportunity  of  reviewing 
and  correcting  a  decree  made  by  itself,  if  erroneous.  It  can  be 
granted  only  before  enrollment;  but  the  same  object  maybe 
obtained  after  the  decree  has  been  enrolled,  by  a  bill  of  review. 
By  a  rule  of  the  English  Court  of  Chancery,  a  petition  for  a 
rehearing  must  be  presented  within  a  fortnight  after  the  order 
pronounced.  2  Madd.  Ch.  482.  This  rule,  however,  does  not 
appear  to  have  been  rigidly  adhered  to  of  late,  and  is  important 
only  as  showing  the  short  time  allowed  there  for  making  the 
application.  We  have  no  rule  on  the  subject.  But  a  decree 
cannot  be  enrolled  until  the  expiration  of  thirty  days  from  tlie 
time  it  is  entered  in  the  minutes  of  the  Court;  E..  S.  369;  so 
that,  in  all  cases,  the  parties  have  thirty  days  to  present  their 
petition  in,  and  how  much  longer,  in  case  the  decree  is  not  en- 
rolled, is  the  question  to  be  now  decided. 
[*448]  *Ninety  days  only  are  allowed  for  appealing  from  the 
decree  or  final  order  of  this  Court  to  the  Supreme  Court, 

406 


SECOND   CIRCUIT,  JULY,  1844.  449 

Bachelor  v.  Nelson. 

II.  S.  379,  and,  by  the  lOotli  rule  of  Court,  a  bill  of  review  must 
1)6  brought  within  the  time  allowed  for  bringing  an  ajtpeal. 
From  analogy,  it  would  therefore  seem,  where  the  decree  has 
not  been  enrolled,  a  rehearing  should  not  be  granted  on  a  peti- 
tion presented  after  the  time  for  appealing  had  expired.  A 
different  rule  would  vest  the  Court  with  power  to  reverse  its 
own  decrees,  after  that  power  had  ceased  to  exist  in  the  ajjpel- 
late  Court;  and  to  open  anew  litigation,  which  the  statute  limit- 
ing appeals  to  ninety  days  was  intended  to  put  at  rest,  after  that 
time,  where  no  appeal  had  been  taken. 

If  defendants  were  dissatisfied  with  the  decree,  and  wished 
to  contest  the  constitutionality  of  the  law  under  which  it  was 
entered,  they  should  have  taken  their  appeal  within  the  ninety 
days.  They  should  not  have  lain  by  until  the  question  was 
settled,  in  another  case,  and  by  another  Court,  and  the  time  for 
appealing  had  exjiired,  before  presenting  their  petition.  If  the 
decree  had  been  enrolled,  they  could  not  now  tile  a  bill  of  re- 
view; and,  it  not  having  been  enrolled,  a  rehearing  should  not 
be  granted. 

Motion  denied. 


*  Bachelor  v.  Nelson  and  another.        [*449] 

Where  an  order  to  take  proofs  was  duly  entered,  but  notice  was  not  given 
within  the  thirty  days  required  by  rule  50,  and  the  examination  of  a  wit- 
ness was  objected  to  before  the  Master  on  that  ground,  liis  deposition  was 
suppressed. 

It  is  not  a  matter  of  course  to  allow  a  deed  to  ba  proved  at  the  hearing,  but 
a  satisfactoiy  excuse  must  be  given  for  the  failure  to  p:ove  it  before  the 
Master. 

The  documentary  evidence  refeiTad  to  in  the  5Gth  rule,  has  reference  to  docu- 
ments which  prove  themselves.  But  to  entitle  a  party  to  use  such  docu- 
mentary evidence  in  any  case,  there  must  have  been  an  order  entered  for 
taking  proofs,  to  give  the  opposite  party  an  opportunity  of  examining  wit- 
nesses relative  thereto,  or  of  introducing  countervaihng  proofs.' 

'See  Jerome  v.  Seymour,  Harr.  Ch.,  255;  Stone  r.  Welling,  14  Mich.,  514. 

407 


450  CASES  IN  CHANCERY. 

Bachelor  v.  Nelson. 

Motion  by  defendants  to  suppress  the  testimony  of  one  Whip- 
ple, a  witness  examined  by  complainant;  and  a  cross  motion  by 
complainant  for  leave  to  prove  the  execution  of  a  morto;age  and 
deed,  at  the  hearing. 

O.  Hawkins,  for  complainant. 

J.  Allen,  for  defendants, 

The  Chancellok.  Defendants'  motion  must  be  granted- 
After  a  cause  is  at  issue  by  filing  a  replication,  either  party  may 
enter  an  order  of  course  for  taking  proofs,  and  serve  notice 
thereof  on  the  opposite  party,  within  thirty  days.  If  neither 
party,  within  that  time,  enter  the  order  and  give  notice  there- 
of, the  cause  stands  for  hearing  on  bill,  answer  and  replication. 
Rule  50.  In  the  present  case  the  order  was  duly  entered,  but 
notice  thereof  was  not  given  within  the  thirty  days,  and  the 
examination  of  the  witness  was  objected  to,  on  that  ground, 
before  the  Master. 

It  is  not  a  matter  of  course  to  allow  a  deed  to  be  proved  at 

the  hearing.  "Examinations  at  the  hearing,"  says 
[*450]  *Chancellor  Kent,  "  ought  to  be  sparingly  used,  or  they 

would  tend  very  much  to  delay  and  embarrass  business, 
by  changing  the  whole  practice  of  the  Court,  and  giving  it  a 
nisi  prius  character."  "  In  my  opinion,"  says  he,  "  no  paper 
whatever  ought  to  be  prov^ed  at  the  hearing,  without  satisfactory 
reasons  being  assigned  why  it  was  not  proved  in  the  regular 
way,  before  the  examiner."  No  excuse  is  shown  why  the  mort- 
gage and  deed  were  not  regularly  proved,  before  a  Master,  ex- 
cept the  solicitor's  neglect  to  give  notice  of  the  order  entered 
by  him  for  taking  proofs. 

The  56tli  rule,  which  has  been  referred  to,  has  no  bearing  on 
the  question.  It  says,  "Documentary  evidence,  which  is  neither 
made  an  exhibit  before  the  commissioner,  or  set  out,  or 
distinctly  referred  to  in  the  pleadings,  shall  not  be  read  on  the 
hearing,  unless  notice  of  the  intention  to  use  it  at  the  hearing^ 
is  given  to  the  adverse  party,  at  least  ten  days  before  the  expi- 
ration of  the  time  allowed  to  produce  proofs,"  &c.  This  part 
408 


SECOXD  CIECUIT,  JULY,  1S44.  451 

Bachelor  v.  Nelson. 

of  tlie  rule  lias  reference  to  docunieuts  that  ])rove  themselves, 
and  do  not  require  to  be  proved  by  witnesses;  as  exemplifica- 
tions of  records,  and  the  like;  and  provides  that  such  documents, 
when  not  set  out,  or  distinctly  referred  to  in  the  pleadings,  shall 
not  be  used  on  the  hearing,  without  having  been  made  an 
exhibit  before  the  Master,  or  notice  to  the  opposite  party,  as 
required  by  the  rule.  Such  documents  may  be  read  as  evidence 
at  the  hearing,  as  a  matter  of  course,  by  the  English  ])ractice, 
which  the  rule  was  intended  to  change,  in  regard  to  documents 
not  set  out,  or  distinctly  referred  to  in  the  pleadings,  by  requir- 
ing them  to  be  made  exhibits,  or  notice  to  be  given  of  the  par- 
ty's intention  to  use  them  at  the  hearing,  to  prevent  surprise. 
Pardee  v.  DeCala^  1  Paig^R.  132.  But,  to  entitle  a  party  to 
use  such  documentary  evidence  in  any  case,  there  must  have 
been  an  order  entered  for  taking  proofs,  to  give  the  op- 
posite party  *an  opportunity  of  examining  witnesses  [*451] 
relative  thereto,  or  of  introducing  countervailing  proofs, 
id.  135;  Il'dls  v.  Pittman,  1  Paige  E.  490. 

The  concluding  part  of  the  56tli  rule, — "and  no  deed  or 
other  writing  shall  be  proved  at  the  liearing,  except  on  an  order 
previously  obtained,  after  due  notice  to  the  adverse  party;" — 
has  reference  to  deeds  and  other  instruments  to  be  proved  at 
the  hearing,  and  not  to  documents  that  jjrove  themselves,  to 
which  the  preceding  part  of  the  rule  is  alone  applicable. 

Whipple's  testimony  must  be  suppressed,  and  leave  must  be 
refused  to  prove  the  execution  of  the  deed  and  mortgage  at 
the  hearing.  As  it  appears,  however,  the  order  for  taking 
proofs  was  entered  in  time,  and  notice  not  given  in  consequence 
of  solicitor's  misapprehension  of  the  practice,  he  is  to  be  at 
liberty  to  enter  a  new  order  for  taking  proofs,  at  any  time  within 
ten  days,  on  paying  defendant's  costs  of  opposing  the  present 
motion.* 

*  Note.    Rule  56  has  since  been  amended. 


409 


452  CASES  IN  CHANCEEY 


Webb  V.  Williams. 


[*452]  ^Pascal  D.  Webb  v.  Israel  Williams  et  al. 

Where  complainant  filed  his  bill  in  this  Court  for  relief  against  a  judgment 
at  law,  and  subsequently  sued  out  a  writ  of  error  to  the  Supreme  Court  on 
the  judgment,  an  order  was  granted  compelling  him  to  elect  in  which 
Court  he  would  proceed. 

On  a  motion  to  compel  a  complainant  to  elect  between  prosecuting  his  suit  in 
this  Court,  and  proceeding  on  a  writ  of  error  in  the  Supreme  Court,  for  re- 
lief against  a  judgment  at  law,  it  is  not  necessary  to  serve  a  copy  of  the 
proceedings  in  the  Supreme  Court,  with  the  notice  of  the  motion. 

Defendants  brought  an  action  (5f  ejectment,  in  tlie  Circuit 
Court  for  Washtenaw  county,  against  complainant,  for  two  un- 
divided thirds  of  the  west  half  of  the  southeast  quarter  of  sec- 
tion 7,  town  4,  south  of  range  6,  east,  and  obtained  a  verdict 
and  judgment  therefor,  at  the  JN^ovember  Term  of  the  Court, 
in  1842.  January  13th,  1843,  complainant  filed  his  bill  in  this 
Court,  and  obtained  an  injunction  restraining  defendants  from 
taking  out  execution  on  their  judgment.  In  January  last  the 
injunction  was  dissolved;  and,  on  the  twentieth  of  March,  com- 
plainant sued  out  a  writ  of  error  in  the  Supreme  Court,  on  the 
judgment,  and  filed  a  bond  staying  execution  under  the  statute. 
A  motion  is  now  made  by  defendants,  for  an  order  requiring 
him  to  elect  in  which  Court  he  will  proceed. 

J.  Allen,  in  support  of  the  motion. 

O.  Hawkins,  contra. 

The  Chancellor.  The  case  of  Cockerel  v.  Chohneley^  1 
Kuss.  &  Myl.  R.  418,  is  in  point.  In  that  case,  as  in  this,  a  bill 
was  filed  to  restrain  defendant  from  proceeding  at  law  on 
['"453]  a  judgment,  and  complainant,  having  brought  *a  writ 
of  error  in  the  House  of  Lords,  it  was  held  he  could  not 
proceed  at  law  and  in  equity,  at  the  same  time.  That  he  must 
either  abandon  his  writ  of  eri-or,  or  dismiss  his  bill. 

It  was  not  necessary  to  serve  a  co23y  of  the  proceedings  in 
410 


SECOND  CIRCUIT,  JULY,  1844.  454 


Brown  v.  Byrne. 


the  Supreme  Court,  with  notice  of  the  motion.  The  notice 
\v:is  sufficient  in  stating  as  it  did,  that  the  motion  woukl  be 
fouuded  on  an  affidavit,  a  copy  of  which  was  served,  and  on 
the  pleadings  in  the  respective  causes. 


Motion  granted. 


Brown  et  al.  v.  Byrne  and  Ensworth. 

It  is  improper  for  a  Master,  to  perform  any  official  act,  as  Master,  in  a  cause 
in  which  he  is  solicitor,  or  partner  of  the  solicitor. 

Motion  to  set  aside  Master's  sale  of  mortgaged  premises 
under  a  decree. 

The  premises  were  sworn  to  be  worth  $1,300,  and  it  appeared, 
from  the  Master's  report,  they  were  sold  to  complainants  for 
$100.  It  also  appeared  one  of  complainants'  solicitors,  as 
Master,  had  advertised  the  premises  for  sale,  but,  being  absent 
on  the  day  of  sale,  they  were  sold  at  his  request  by  another 
Master,  who  executed  the  deed  to  complainants. 

G.  Miles,  in  support  of  the  motion. 

W.  A.  Fletcher,  contra. 

The  Chancellor.  It  is  improper  for  a  Master  to  perform 
any  official  act,  as  Master,  in  a  cause  in  which  he  is 
^solicitor,  or  a  partner  of  the  solicitor.  This,  of  itself,  ['^454] 
is  sufficient  cause  for  setting  aside  the  sale,  before  it  has 
been  confirmed.  But  it  appears  the  mortgaged  premises  were 
sold  for  $100  only,  while  Ensworth  swears  they  are  worth  $1,300, 
and  there  is  nothing  before  the  Court  showing  he  has  placed 
too  high  a  value  on  them. 

Motion  granted. 


411 


^55  CASES  m  CHANCERY 


Hurlbut  V.  Britain. 


Chauncey  Hurlbut  v.  Calvin  Britain  and  Talman 

Wheeler. 

When  a  replication  to  a  plea  is  filed,  the  truth  of  the  plea  is  the  only  question 
to  be  tried,  and  if  established  it  is  a  bar  to  so  much  of  the  bill  as  it  pro- 
fesses to  cover.^ 

Bill  to  foreclose  a  mortgage,  dated  June  20,  1839,  and  exe- 
cuted by  Britain  to  the  Detroit  City  Bank,  In  December, 
1839,  the  bank  was  placed  in  the  hands  of  a  receiver,  who,  on 
May  28th,  1842,  sold  and  assigned  the  mortgage  and  accom- 
panying bond  to  complainant.  Britain  interposed  a  plea,  stat- 
ing that  the  bond  and  mortgage  in  question,  with  five  otliers 
of  the  same  date,  was  given  by  him  to  the  Detroit  City  Bank, 
upon  and  for  the  sole  consideration  and  condition  tliat  the 
bank  should  de230sit  with  the  receiver  of  the  Bank  of  Brest, 
$8,000  to  his  credit,  and  cancel  his  liabilities  at  said  last  named 
bank,  to  that  amonnt,  or  as  nearly  so  as  might  be.  The  plea 
then  averred  that  that  the  Detroit  City  Bank  did  not  make 
such  deposit,  or  cancel  his  liabilities  at  the  Bank  of  Brest,  to 
the  amount  of  $8,000,  or  any  other  amount.  The  complainant 
filed  a  re23lication  to  the  plea. 

[-455]     ^A.  Davidson^  for  complainant. 

S.  Barstow,  for  defendants. 

The  Chancellor.  Is  the  plea  proved  ?  AYheii  a  replication 
is  tiled,  the  truth  of  tlie  plea  is  the  OTily  question  to  be  tried, 
and,  if  established,  it  is  a  bar  to  so  much  of  the  bill  as  it  pro- 
fesses to  cover.  Fish  v.  Miller^  5  Paige  B.  26 ;  Bogardns  t. 
Trinity  Church,  4  Paige  R.  178;  Daws  v.  Mc Michael,  6  Paige 
R.  139. 

^As  to  what  decree  complainant  will  be  entitled  to,  if  found  not  to  be 
true,  see  Hurlbut  v.  Britain,  2  Doug.  191. 

412 


rmST  CIECUIT,  JULY,  1S44.  456 

Hurlbut  V.  Britain, 

Brown  is  the  only  witness.  lie  is  complainant's  witness,  l)ut 
his  testimony  having  been  taken  and  read  by  complainant,  de- 
fendant is  entitled  to  the  beneiit  of  it  to  establish  his  plea, 
althongh  he  has  examined  no  witness  of  his  own  for  that  ])nr- 
pose.  Brown  was  cashier  of  the  Detroit  City  Bank,  when  the 
mortgages  were  given.  He  says  they  were  given  to  the  bank,  on 
condition  he,  as  the  agent  of  the  bank,  shonld  deposit  with  the 
receiver  of  the  Bank  of  Brest,  $8,000  of  the  bills  of  that  bank, 
to  the  credit  of  Britain,  and  cancel  that  amount  of  Britain's 
indebtedness  at  that  bank.  He  further  says  that,  in  July  or 
August,  1839,  he  deposited  the  $8,000  with  the  attorney  of  the 
receiver,  and  took  a  recei]>t  for  it,  "and  received  the  assent. of 
the  Attorney  General  to  the  release  of  certain  bonds  and  mort- 
gages given  by  Britain  to  the  Auditor  General  of  the  State,  to 
secure  the  payment  of  the  liabilities  of  the  Bank  of  Brest." 
These  bonds  and  mortgages  to  the  Auditor  General,  for  the  se- 
curity of  the  creditors  and  bill-holders  of  the  bank,  were  not 
Britain's  indebtedness  at  the  bank,  or  debts  due  from  him  to 
the  bank.  When  the  arrangement  for  the  bonds  and  mortgages 
was  entered  into,  Britain  told  Brown  he  was  owing  the  Bank 
of  Brest  about  $6,000,  and  that  he  had  been  sued  for  it.  This, 
doubtless,  was  one  of  the  liabilities  that  wore  to  be  canceled; 
but  neither  it,  nor  any  other  debt  due  from  Britain 
*to  the  Bank  of  Brest,  has  ever  been  paid  by  the  Detroit  [*456] 
City  Bank.  The  $8,000  were  not  deposited  with  the  recei- 
ver to  the  credit  of  Britain,  or  used  in  paying  what  Britain  owed 
the  bank.  The  receivers  had  nothing  to  do  with  the  bonds  and 
mortfjaofes  executed  to  the  Auditor  General.  He  could  not 
discharge  them,  or  enforce  their  collection.  They  did  not  be- 
long to  the  bank;  they  composed  no  part  of  its  assets.  The 
creditors  of  the  bank  only  could  have  recourse  to  them  for  the 
payment  of  their  debts,  after  all  other  means  for  enforcing  their 
payment  had  failed. 

The  plea  being  sustained  by  the  evidence  in  the  case,  the  bill 
must  be  dismissed  with  costs  as  to  both  of  the  defendants;  and 
it  is  therefore  unnecessary  to  decide  the  other  questions  dis- 
cussed o\\  the  argument. 

413 


45T  CASES  IN  CHANCERY. 


Parker  v.  Parker. 


[*457]  '^Dana    Parker   v.  Philomelia  D.  Parker, 
Melaistcthon   Smith,  Francis  H.   Blanchard 

and  Timothy  A.  Sumner. 

A  plea  must  be  positive,  and  not  on  belief,  when  it  states  a  fact  within  defen- 
dant's knowledge,  or  touching  his  own  acts,  but  when  it  relates  to  the  act 
of  third  persons  and  not  to  defendant's  own  act,  it  may  be  on  information 
and  belief. 

In  a  plea  that  one  of  the  defendants  is  a  married  woman,  and  her  husband 
is  not  a  party  to  the  suit,  it  is  not  necessary  to  show  by  the  plea  she  cannot 
sue  and  be  sued  as  an  unmarried  woman,  under  the  eighteenth  section  of 
chapter  four,  title  seven,  part  two,  of  the  revised  statutes,  where  the  bill 
does  not  make  out  a  case  bringing  her  within  the  statute. "^ 

Bill  to  foreclose  a  mortgage. 

The  bill  stated  that,  on  July  25th,  1842,  complainant  became 
surety  for  the  defendant  Philomelia  D,  Parker,  as  endorser  of 
certain  promissory  notes  made  and  negotiated  by  her,  to  the 
amount  of  $5,944.73  ;  that  she,  on  the  same  day,  executed 
and  delivered  to  him  a  bond  in  the  penal  sum  of  $11,900,  con- 
ditioned to  save  him  harmless  against  the  payment  of  said 
notes,  and  two  mortgages  on  real  estate  in  Jackson  county,  as 
securit}''  for  the  performance  of  the  condition  of  the  bond, 
which  mortgages  were  acknowledged  and  recorded  ;  that  Phi- 
lomelia had  failed  to  pay  the  notes  when  they  became  due,  and 
complainant  had  been  compelled  to  pay,  and  had  paid  on  them, 
$4,249.95,  which,  with  interest  thereon,  from  December  31st, 
1842,  was  due  and  owing  to  him  from  the  said  Philomelia. 
The  other  defendants  were  parties  to  the  bill  as  subsequent 
incumbrancers,  and  pleaded  in  bar  thereof  that  they  had  been 
informed,  and  verily  believed,  that  Walter  Damon,  late  of 
Beading,  in  the  county  Middlesex,  and  State  of  Massachusetts, 
was,  at  the  time  of  exhibiting  the  bill  of  complaint,  and 
[■^'458]  ever  since  had  been,  the  '^lawful  husband  of  the  said 
Philomelia  ;  and  that  said  Walter  Damon  should  have 
been  made  a  party  to  the  bill. 

>  See  Comp.  Laws,  1871,  §  4805. 
414 


THIRD  CIRCUIT,  JULY,  1844.  459 

Parker  v.  Parker. 
Sumner,  in  support  of  tlie  plea. 
Johnson,  contra. 

The  Chancellor.  Tlie  first  objection  to  the  plea  is  that  it 
is  not  positive,  but  on  intbnnation  and  belief.  "Where  a  plea 
states  a  fact  within  defendant's  Icnowledge,  or  touching  Ids  own 
acts,  it  must  be  positive;  but,  when  it  relates  to  the  acts  of 
third  persons,  to  winch  he  is  not  a  party,  it  is  sufficient  if  it  be 
on  information  and  belief.  Drew  v.  Drew,  2  Yes.  &  B.  159  ; 
Coop.  Eq.  PL  228. 

Another  objection  is  the  plea  does  not  show  Philomelia, 
though  a  married  woman,  may  not  sue  and  be  sued  as  a  feme 
sole,  by  reason  of  the  eighteenth  section  of  Chap.  4,  Tit.  7,  part 
3,  of  the  Revised  Statutes,  p.  344.  The  section  is  in  these 
words  : 

"  When  any  married  woman  shall  come  from  any  other  State 
or  country,  into  this  State,  without  her  husband,  he  having 
never  lived  w^ith  her  in  this  State,  she  may  transact  business, 
make  contracts,  and  commence,  prosecute  and  defend  suits,  in 
her  own  name,  and  dispose  of  her  property,  wdiich  may  be 
found  here,  in  like  manner,  in  all  respects,  as  if  she  Avere 
unmarried,  upon  all  contracts,  and  for  all  other  acts,  made  or 
done,  by  her  after  her  arrival  in  this  State  ;  and  she  may  make 
and  execute  any  deeds  and  other  instruments,  in  her  own  name, 
and  do  all  other  lawful  acts,  that  may  be  necessary  or  proper 
to  carry  into  effect  the  powers  so  granted  to  her." 

The  answer  to  this -objection  is,  that  the  bill  is  not  so  drawn 
as  to  require  the  defendants,  by  their  plea,  to  negative  the  sev- 
eral facts  which,  under  the  statute,  confer  on  a  married 
woman  the  right  to  sue  and  be  sued,  and  to  make  *con  [*459] 
tracts,  without  her  husband.  Comj^lainant,  in  drawing 
his  bill,  should  luive  anticipated  the  plea,  and  charged  the 
necessarv  facts  to  have  avoided  it  under  the  statute  ;  or.  after 
the  plea  had  l)een  put  in,  amended  his  bill  within  the  twenty 
days  allowed  by  the  82d  rule  of  Court.  Having  done  neither, 
the  plea  is  suthcient.  The  record,  as  it  stands,  shows  Philo- 
melia was  a  married  woman  when  the  bill  was  filed,  and  that 

415 


460  CASES  IN  CHANCERY. 

Mason  v.  Payne. 

her  husband  is  still  living,  without  stating  any  reason  for  his 
not  being  a  party. 

Plea  allowed,  with  leave  to  complainant  to  amend  his  bill  in 
twenty  days,  on  paying  costs. 


Jaspeb  Mason  v.  Rodney  C.  Payne,  The  President, 
Directors  and  Company  of  the  Farmers  and  Me- 
chanics' Bank  of  Michigan,  and  Jacob  Beeson. 

Where  a  part  of  mortg-aged  premises  has  been  aliened  by  the  mortgagor,  sub- 
sequent to  the  mortg'ag'e,  the  rule  m  equity,  on  a  foreclosure  and  sale,  is  to 
require  that  part  of  the  premises  in  which  the  mortgag'or  has  not  parted 
wdth  his  equity  of  redemption,  to  be  first  sold;  and  then,  if  necessary,  that 
which  has  been  alipned :  and,  where  the  latter  is  in  possession  of  different 
vendees,  in  the  inverse  order  of  alienation.' 

But  where  a  part  of  mortgaged  premises  is  conveyed  by  the  mortgagor  sitbject 
to  the  payment  of  the  whole  of  the  mortgage,  that  part  as  between  the  ven- 
dor and;  vendee  constitutes  the  primary  fund  for  its  payment.'^ 

A  vendee  is  chargeable  with  notice  of  the  contents  of  a  deed  to  his  grantor, 
through  which  he  claims  title.* 

Where  a  lot  of  land  was  conveyed  by  complainant,  subject  to  the  payment  of 
a  mortgage  on  certain  other  lands,  and  proceedings  were  had  in  chancery 
to  foreclose  the  mortgage,  and  the  decree  became  the  pi*operty  of  one  of 
the  defendants  who  also  purchased  the  lot  on  which  payment  was  charged, 
■it  teas  held,  that  such  purchase  amounted  to  a  satisfaction  of  the  mortgage 
to  the  value  of  the  lot  so  purchased. 

I  *460]     *An  application  by  a  party  or  privy  to  a  proceeding  in  tliis  Court,  to 

stay  such  proceeding,  must  be  directly  to  the  Court  itself,  in  the 

matter  of  the  suit  or  proceeding,  for  an  order  to  that  effect;  and  an  officer 

out  of  Court  has  no  authority  to  allow  an  injunction  for  that  purpose.     But 

'  See  Caruthers  v.  Hall,  10  Mich.,  40;  James  v.  Brown,  11  id.,  25;  Cooper  v. 
Bigly,  13  id.,  463;  McKinney  v.  Miller,  19  id.,  142;  Ireland  v.  Woolman,  15 
id.,  253;  Sibley  v.  Ba'rer,  23  id.,  312;  Trowbridge  r.  Harleslon,  ante,  185. 

'See  In  re  estate  of  Wisner,  20  Mich.,  450;  Baker  r.  Terrel,  8  Minn.,  195. 

^Fitzhugh  V.  Barnard,  12  Mich.,  110;  Norris  r.  Hill,  1  id.,  202;  Ctise  r. 
Erwin,  18  id.,  434;  Baker  v.  Mather,  25  id.,  51. 

416 


FIKST  CIRCUIT,  SEPTEMBER,  1844.  4C1 

Mason  v.  Payne. 

where  the  case  was  such  that  an  order  would  have  been  granted,  and  the 
objection  was  not  taken  on  the  argument,  the  injunction  was  allowed  to 
stand  for  such  order. 

Motion  to  dissolve  injunction  on  bill  and  answer. 

Jacob  Beeson,  being  the  owner  of  five  several  lots  ot  land, — 
say  Nos.  1,  2,  3,  4  and  5, —  in  June,  1834,  mortgaged  them  to 
George  Kimmel  for  $1,000,  payable  in  five  years,  with  interest; 
which  mortgage  was  duly  recorded-  In  May,  1830,  Beeson 
sold  lots  Nos.  1,  2  and  4,  to  the  complainant,  Jasj)er  Mason, 
subject  to  ^'' the  payment  of  the  whole  and  entire  amounV^  of 
the  Kimmel  mortgage;  and  the  latter  covenanted  to  pay  the 
mortgage,  and  to  indemnify  and  save  harmless  Beeson,  his 
heirs,  executors,  administrators,  and  assigns,  from  any  claim 
or  demand  on  account  of  it.  In  August,  1836,  Mason  sold 
and  conveyed,  by  warranty  deed,  lots  one  and  four  to  Stanton 
and  Hamilton,  who  purchased  without  notice,  as  the  answer 
states,  that  the  conveyance  from  Beeson  to  Mason,  their 
grantor,  was  subject  to  the  Kimmel  mortgage.  In  October, 
1840,  Payne  purchased  these  lots,  viz.  one  and  four,  in  trust 
for  the  bank,  as  the  bill  states,  and  the  trust  is  not  denied  by 
the  answer.  In  December,  1837,  Mason,  being  the  owner  of 
lot  fifty-eight  in  the  \  illage  of  Niles,  mortgaged  it  to  Stanton 
and  Hamilton,  and  one  Walker,  who  was  at  that  time  part 
owner  with  them  of  lots  one  and  four,  to  indemnify  them  against 
the  Kimmel  mortgage.  This  mortgage  was  recorded  about 
the  time  it  w'as  executed.  Mason  afterwards,  in  March,  1838, 
sold  lot  fifty-eight  to  Thomas  Fitzgerald,  subject  to  the  payment 
of  the  Kimmel  mortgage,  which  was  thereby  "  charged  upon 
the  said  lot  of  landP  In  August,  1841,  Fitzgerald  sold  it  to  the 
bank,  subject  to  the  mortgage  from  Mason  to  Stanton, 
■^Hamilton  and  AValker,  and  a  mortgage  executed  by  [*461] 
Fitzgerald  to  Cogswell  K.  Green,  which  mortgages  were 
to  be  "and  remain  as  a  lien  on  said  premises,  according  to  the 
true  intent  thereof,  until  fully  paid  and  satisfied  by  the  said 
party  of  the  second  part,  their  successors  in  office  or  assigns." 
On  June  27th,  1840,  Kimmel  obtained  a  decree  to  sell  the  lots 
mortgaged  to  him,  unless  they  were  redeemed  within  a  given 
YoL.  L— 27  417 


462  CASES  IN  CHANCERY. 

Mason  v.  Payne. 

time,  in  payment  of  his  mortgage,  which  decree  was  assigned 
bj  him  on  December  6th,  1843,  to  John  F.  Porter,  and  after- 
wards by  Porter  to  the  bank.  The  complainant,  who  was  still 
the  owner  of  lot  No.  2,  insisted  the  bank,  as  the  purchaser  of 
lot  fifty-eight  from  Fitzgerald,  was  bound  to  pay  the  Kimmel 
mortgage,  and  that,  therefore,  the  assignment  of  the  decree  by 
Porter  to  the  bank,  was,  in  equity,  a  satisfaction  of  the  decree; 
and  prayed  the  bank  might  be  decreed  to  acknowledge  satisfac- 
tion of  the  decree. 

C.  Dana,  in  snpport  of  the  motion. 
II.  JV.  Walker,  contra. 

The  Chancellor.  The  effect  of  the  conveyance  from  Beeson 
to  Mason,  of  lots  one,  two  and  four,  subject  to  the  payment  of 
the  whole  of  the  Kimmel  mortgage,  as  between  them,  was  to 
make  these  lots  the  primary  fund  for  the  payment  of  that  mort- 
gage; Oox  V.  Wheeler,  7  Paige  P.  248;  Jumel  v.  Jumel,  id. 
591;  and  the  covenant  of  indemnity  was  to  secure  Beeson 
against  any  deficiency  of  the  fund. 

Where  a  part  of  mortgaged  premises  has  been  aliened  by  the 
mortgagor,  subsequent  to  the  mortgage,  the  rule  in  equity,  on 
a  foreclosure  and  sale,  is  to  require  that  part  of  the  premises  in 
which  the  mortgagor  has  not  parted  with  his  equity  of 
[*462]  redemption,  to  be  first  sold;  and  then,  if  *necessary, 
that  which  has  been  aliened;  and,  where  the  latter  is  in 
possession  of  different  vendees,  in  the  inverse  order  of  aliena- 
tion. This  rule,  however,  is  inapj^licable  to  the  conveyance 
from  Beeson  to  Mason,  as  it  was  made  subject  to  the  payment 
of  the  Kimmel  mortgage,  which  raised  an  equity  in  favor  of 
Beeson  to  have  the  lots  conveyed  by  him  to  Mason  first  applied 
in  payment  of  that  mortgage,  if  Mason  failed  to  pay  it  in  pur- 
suance of  his  covenant.  The  ansAver  denies  Stanton  and  Ham- 
ilton had  notice  of  this  equity,  when  they  purchased  of  Mason. 
If  they  had  not  actual  notice,  they  were  chargeable  with  con- 
structive notice.  They  could  not  make  out  their  title  to  lots 
one  and  four,  w^ithout  claiming  through  Beeson's  deed  to  Mason, 
418 


riEST  CIRCUIT,  SEPTEMBEE,  1844.  463 

Mason  v.  Payne. 

their  grantor;  and  they  were,  therefore,  chargeable  with  notice 
of  tlie  contents  of  that  conveyance.  Jttmel  v.  Jiimel,  7  Paige 
E.  591;  JIa7Tls  v.  Fhj,  id.  421;  Moore  v.  Bennett,  2  Ch.  Cas. 
24G.  This  conveyance,  as  I  liave  already  stated,  as  between 
Beeson  and  Mason,  in  eqnity,  charged  lots  one,  two  and  four, 
with  the  payment  of  the  whole  of  the  Kimniel  mortgage;  so 
that  neither  Mason,  nor  his  privies  in  estate,  who  are  chargea- 
ble with  notice  of  its  contents,  have  a  right,  as  against  Beeson, 
to  have  the  Kimmel  mortgage  paid  by  a  sale  of  that  part  of  the 
mortgaged  premises  not  conveyed  by  Beeson  to  Mason. 

But,  as  the  conveyance  from  Mason  to  Stanton  and  Hamilton 
was  not  made  subject  to  the  Kimmel  mortgage,  they  would 
have  a  right,  as  against  Mason,  if  they  were  still  the  owners  of 
lots  one  and  four,  to  have  lot  'No.  2,  still  owned  by  Mason, 
first  sold  to  satisfy  the  decree;  and  the  bank  has  the  same  right, 
unless  that  right  has  been  displaced  by  a  new  equity,  between 
the  bank  and  Mason,  growing  out  of  the  purchases  of  lot  fifty- 
eight  and  the  decree  by  the  bank. 

*Lot  fifty-eight  is  no  part  of  the  premises  mortgaged  [*463] 
by  Beeson  to  Kimmel,  but  was  mortgaged  by  Mason  to 
Stanton,  Hamilton  and  AValker,  when  they  were  owners  of  lots 
one  and  four,  to  indemnify  them  against  the  Kimmel  mort- 
gage. Mason,  to  whom  it  belonged  to  pay  that  mortgage, 
afterwards  sold  lot  fifty-eight  to  Fitzgerald,  "  siihject  to  thejyat/- 
ment  of  the  whole  of  KimmeVs  mortgage,''^  describing  the 
mortgage  particularly  in  the  conveyance.  Tliis,  as  between 
Fitzgerald  and  Mason,  made  lot  fifty-eight  a  fund  for  the  pay- 
ment of  Kimmel's  mortgage.  It  was  no  longer  a  mere  secur- 
ity of  indemnity  to  Stanton,  Hamilton  and  "Walker  and  their 
grantees,  but  was  charged  with  the  payment  of  that  mortgage. 
Now,  as  between  a  mortgagor  and  his  vendee  subject  to  the 
mortgage,  the  mortgaged  premises  are  a  primary  fund  for  the 
payment  of  the  mortgage  debt;  so,  in  the  present  case,  as  be- 
tween Mason  and  Fitzgerald,  or  his  vendee  the  bank,  lot  fifty- 
eight  is  the  primary  fund  for  the  payment  of  the  Kimmel 
mortgage.  The  bank  purchased  subject  to  the  Stanton,  Ham- 
ilton and  Walker  mortgage,  and  another  mortgage  to  Green; 

419 


4Ci  CASES  IN  CHANCERY. 

Morey  v.  Forsyth. 

and,  under  tlie  rule  above  stated,  the  bank  was  chargeable  with 
notice  of  the  contents  of  Mason's  deed  to  Fitzgerald,  when  it 
purchased  of  him.  And,  as  the  bank  owns  both  lot  fifty-eight 
and  the  decree,  the  latter  must  be  considered  as  satisfied,  if  the 
property  is  worth,  and  will  sell  for  enough  to  pay  what  is  due 
on  the  decree;  otherwise,  it  is  a  satisfaction  only  so  far  as  it 
will  go  towards  paying  the  decree. 

The  complainant's  case  was  not  one  proper  for  an  injunction, 
but  for  an  order  staying  proceedings  in  the  foreclosure  suit, 
which  might  have  been  obtained  on  application  by  petition  to 
the  Court.  In  the  language  of  Chancellor  Walworth,  "  an  ap- 
plication, by  a  party  or  privy  to  a  proceeding  in  this 
[^464]  Court,  to  stay  such  proceeding,  must  *be  directly  to  the 
Court  itself,  for  an  order  to  that  effect;"  and  an  officer 
out  of  Court  has  "  no  authority  to  allow  an  injunction  for  that 
purpose."  Ellsworth  v.  Cooh,  8  Paige  E.  643;  2  Paige  R  26. 
This  objection  was  not  taken  on  the  argument;  and,  an  answer 
having  been  put  in,  and  the  case  being  one  in  which  an  order 
would  have  been  granted,  I  shall  let  the  injunction  stand  in  the 
place  of  an  order. 

Motion  denied. 


[=^465]  "^'Peter  Morey  v.  Egbert  A.  Forsyth  et  ah 

The  assignee  of  a  judg-ment,  or  cJiose  in  action  on  which  a  judgment  has  been 
obtained  in  the  name  of  the  assignor,  is  not  a  necessary  pai'ty  to  a  judg- 
ment creditor's  bill  filed  by  the  assignee. 

But  where  there  is  a  controversy  between  the  assignor  and  assignee,  touching 
the  assignment,  the  Court  will  direct  the  assignor  to  be  made  a  party  for 
the  protection  of  all.' 

Where  an  assignment  of  a  debt  is  made  to  defraud  creditors,  they  only  can 
take  advantage  of  the  fraud  to  set  it  aside,  and  it  is  good  against  all 
others;  and  the  debtor  cannot  set  it  up  as  a  defense  to  a  suit  by  the 
assignee. ** 

'  See  Beach  v.  White,  post,  495;  Woodward  v.  Clark,  15  Mich.,  104. 
*See  Hess  v.  Final,  32  Mich.,  515;  McAuUffe  v.  Arner,  27  id.,  76. 

420 


FIKST  CIRCUIT,  SEPTEMBER,  1844.  4G6 


Morey  v.  Forsyth. 


Where  the  object  of  a  suit  is  to  place  trust  property  in  the  possession  of  the 
trustee,  and  not  to  atfect  the  existence  of  the  trust  or  trust  property,  the 
cestui  que  trust  is  not  a  necessaiy  party. 

Motion  for  a  receiver  on  a  judginent  creditor's  bill. 

The  bill  was  in  the  usual  form,  and  stated  that,  in  June, 
1840,  previous  to  the  rendition  of  the  judgment,  which  was  in 
the  name  of  Joseph  W.  Brown,  tlie  said  Brown,  for  a  good, 
sufficient,  and  valuable  consideration,  assigned,  sold  and  trans- 
ferred to  complainant  the  claim  upon,  and  for  the  recovery  of 
which,  the  judgment  was  obtained;  and  that  complainant  was 
the  absolute  owner  of  the  judgment  so  recovered.  The  answer 
of  Forsyth,  the  judgment  debtor,  was  read  in  oppositi^.n  to  the 
motion.  Among  other  things,  it  stated,  on  information  and 
belief,  that  the  assignment  from  Brown  to  complainant  was 
made  to  defraud  Brown's  creditors.  That  Elislia  S.  Avery  and 
Charles  Eldredge,  in  December,  1840,  filed  a  judgment  credi- 
tor's bill  against  Brown,  and  obtained  the  appointment  of  a 
receiver,  to  whom  Brown,  on  the  first  of  March,  1842,  assigned 
all  his  property,  equitable  interests,  things  in  action,  money,  and 
effects;  and  that,  on  the  27th  day  of  February,  1843,  the 
aforesaid  judgment  was  sold  by  the  "^receiver,  at  public  [*466] 
auction,  to  Avery  and  Eldredge.  The  answer  further 
stated  Morey  was  to  pay  two  hundred  dollars  out  of  the  demand 
to  the  Farmers'  and  Mechanics'  Bank,  if  collected, 

H.  H.  Emmons^  in  support  of  the  motion. 

A.  Davidson,  contra;  who  insisted  that  Brown,  Avery  and 
Eldredge,  and  the  Farmers  and  Mechanics'  Bank  should  be 
made  parties. 

TuE  Chancellor.  Nothiiig  is  more  common  in  practice, 
than  for  an  assignee  of  a  judgment  to  file  a  judgment  creditor's 
bill,  without  making  the  assignor  a  party.  At  law,  as  well  as 
in  equity,  the  rights  of  an  assignee  of  a  chose  in  action  are 
recognized  and  protected.  The  assignee,  must,  however,  in 
most  cases,  still  sue  in  the  name  of  the  assignor;  yet  he  is  con- 

421 


467  CASES  m  CHANCERY 


Morey  v.  Forsyth. 


sidered  the  real  party  to  the  record,  and  in  interest,  and  what 
was  formerly  looked  upon  by  courts  of  law  as  a  mere  equity,  is 
now  regarded  by  them  as  a  legal  right ;  so  that  there  is  no 
longer  any  necessity  for  making  the  assignor  a  party  to  a  bill 
by  an  assignee,  with  a  view  of  binding  the  legal  interest  for- 
merly held  to  be  in  the  assignor,  while  the  equitable  interest 
only  was  in  the  assignee.  Ward  v.  Van  Bokkelen,  2  Paige  R. 
289.  When  the  assignor  has  partecl  with  his  whole  interest  in 
the  judgment,  there  is  no  more  necessity  for  making  liim  a 
party  to  a  bill  tiled  by  the  assignee,  than  there  is  for  making 
the  mortgagor,  who  has  conveyed  his  equity  of  redemption,  a 
party  to  a  bill  of  foreclosure.  If  there  be  a  controversy  between 
the  assignor  and  assignee,  touching  the  assignment,  the  Court 
will  direct  the  assignor  to  be  made  a  party  for  the  protection 
of  all ;  otherwise  he  need  not  be  a  party. 

JSTor    are    Avery    and    Eldredge    necessary    parties. 
[*467]  ^Suppose  the  assignment  was  to  defraud  creditors;  they 

only,  and  those  claiming  under  them,  could  take  advan- 
tage of  the  fraud.  It  is  good  against  all  others.  It  cannot  be 
questioned  by  the  debtor  of  the  assignor,  whose  debt  has  been 
assigned,  in  a  suit  brought  by  the  assignee  against  him.  Cred- 
itors may,  or  may  not,  insist  upon  the  fraud,  because  it  works 
to  their  injury;  but  it  cannot  injure  the  debtor  of  the  assignor. 
It  is  not  for  the  defendant,  therefore,  to  refuse  paying  the  judg- 
ment to  complainant,  because  he  may  think  the  assignment  of 
it  was  intended  to  defraud  Avery  and  Eldredge,  who  have  not, 
so  far  as  appears  from  the  answer,  thought  proper  to  institute 
proceedings  to  have  the  assignment  set  aside,  and  the  judgment 
paid  to  them,  or  given  notice  to  defendant  of  their  intention 
to  do  so,  and  forbidden  his  paying  the  money  to  complainant. 
Had  they  given  such  notice,  it  would  not  be  a  good  defense  to 
the  present  suit;  but  would,  I  am  inclined  to  think,  have  war- 
ranted defendant,  for  his  own  protection,  in  tiling  a  bill  of  in- 
terpleader against  complainant  and  Avery  and  Eldredge,  on 
bringing  the  amount  of  the  judgment  into  Court. 

Complainant  may  be  regarded  as  a  trustee  of  that  part  of 
the  judgment,  viz:  the  two  hundred  dollars,  to  be  paid  to  the 

422 


FIRST  CIRCUIT,  SEPTEMBER,  1844.  4G8 

Lawrence  v.  Fellows. 

I)aiik  when  tlie  judgment  is  collected.  The  bill  is  iiled  to 
enforce  payment  of  the  judgment;  not  an  execution  of  the 
trust.  It  is  no  part  of  its  object  to  affect  the  existence  of  the 
trust,  or  the  trust  property,  except  to  place  it  in  the  hands  of 
the  trustee,  who  cannot,  until  then,  execute  the  trust.  Pay- 
ment of  the  judgment  only,  and  not  the  existence,  effect,  or 
execution  of  the  trust,  is  the  prayer  of  the  bill.  The  cestui 
que  trust,  the  bank,  is,  therefore,  not  a  necessary  party.  Franco 
V.  Franco,  3  Ves.  R.  75 ;  Jones  v.  Goodchild,  3  P.  AVms.  R. 
32;  Calvert  Eq.  212,  213. 
Motion  granted 


'^'Horatio  J.  Lawrence  v.  Joseph  Fellows  et  al.  [*468] 

Where  a  bill  is  filed  to  foreclose  a  mortgage  against  a  non-resident  mortga- 
gor, who  does  not  appear,  if  the  mortgaged  premises  are  insufficient  to 
satisfy  the  debt,  the  complainant  must  have  recourse  to  his  remedy  at  law 
for  the  balance;  and  this  Court  has  no  power  to  issue  execution  thereon.^ 

PETrnoN  by  complainant  for  an  order  vacating  an  appraise- 
ment and  set-off  of  real  estate  on  a  fieri  facias,  under  the  "  act 
to  provide  for  the  transfer  of  real  estate  on  execution,  and  for 
other  purposes,"  approved  February  17, 1842,  and  for  a  sale  of 
the  premises  on  the  execution. 

F.  S.  Lee,  in  support  of  the  motion. 

The  Chancellor.  It  appears  by  the  petition  the  defendants 
are  non-residents;  that  complainant  filed  his  bill  against  them," 
as  such,  to  foreclose  a  mortgage,  procured  an  order  for  their 
appearance,  had  the  same  published,  and,  none  of  defendants 
appearing,  obtained  a  decree  under  the  statute  regulating  pro- 
ceedings against  absent,  concealed,  and  non-resident  defend- 
ants.    R.  S.  371.     The  mortgaged  premises  were  afterwards 

'See  Outwite  v.  Porter,  13  Mich.,  533. 

423 


469  CASES  IN  CHANCERY. 

Lawrence  v.  Fellows. 

sold  by  a  Master,  and,  not  bringing  enough  to  pay  what  was 
due  on  the  mortgage,  a  fieri  facias  was  taken  out  for  the  bal- 
ance, and  levied  on  real  estate  of  the  mortgagor,  which  was  ap- 
praised and  set  off  to  the  complainant,  under  the  appraisement 
and  set-off  law  of  February  17th,  1842.  The  complainant, 
deeming  the  law  to  be  unconstitutional,  and  the  proceedings 
had  under  it  null  and  void, — the  defendants  never  having  ap- 
peared in  the  suit, — moves  to  have  the  appraisement  and  set-off 
vacated,  and  the  premises  regularly  sold  on  the  execution. 

Not  only  the  appraisement  and  set-off,  but  the 
[*469]  *execution  itself,  must  be  set  aside  and  held  for  nought, 
not  for  the  reason  urged  by  complainant,  but  a  different 
reason,  viz:  that  the  execution  should  never  have  been  issued. 
The  105th  section  of  the  chapter  of  the  revised  statutes  re- 
lating to  this  Court,  E..  S.  376,  which  gives  the  Court  power 
to  decree  and  direct  the  payment  by  the  mortgagor  of  any  bal- , 
ance  that  may  remain  due  after  a  sale  of  the  mortgaged  prem- 
ises, and,  for  that  purj^ose,  to  issue  execution  as  in  other  cases, 
against  other  property  of  the  mortgagor,  as  well  as  the  58th 
section  relating  to  executions,  is  inapplicable  to  proceedings 
and  decrees  against  non-resident  defendants,  who  have  not  ap- 
peared. Neither  of  these  sections  is  under  the  head,  "  Of 
proceedings  against  absent,  concealed,  and  non-resident  de- 
fendants." The  82d,  83d  and  84th  sections,  which  are  under 
this  head,  provide; — the  82d  section,  that  process  shall  issue  to 
compel  the  performance  of  such  decree,  (against  a  non-resid- 
ent, &c.)  either  by  sequestration  of  the  real  and  personal  estate 
of  the  defendant,  or  such  part  thereof  as  shall  be  deemed  suf- 
ficient, (to  satisfy  the  decree,  when  it  is  for  the  payment  of  a 
sum  ot  money;)  or,  when  any  specific  estate  or  effects  are  de- 
manded by  the  bill,  by  causing  possession  of  the  property  so 
demanded  to  be  delivered  to  the  complainant.  Tlie  83d  section 
provides  that  possession  shall  not  be  delivered,  until  complainant 
shall  have  given  such  security,  and  in  such  sum,  as  the  Court 
shall  direct,  to  abide  the  order  of  the  Court  touching  tlie  restitu- 
tion of  the  estate  or  effects  delivered,  in  case  the  defendant  shall 
appear,  and  be  admitted  to  defend  the  suit.  Tlie  S4th  section? 
424 


FIKST  CIRCUIT,  SEPTEMBER,  1844.  470 

Lawrence  v.  Fellows. 

that,  upon  like  security  being  given,  the  Court,  when  a  sequestra- 
tion shall  have  issued,  may  order  the  decree  to  he  satisfied  out 
of  the  estate  and  efiects  sequestered;  but,  it'  such  security  shall 
not  be  given,  the  estate  and  effects  shall  remain  under 
the  direction  of  the  *Court,  to  abide  its  further  (jrder.  [*4T0] 
And  the  8Sth  section  provides,  if  the  bill  shall  have 
been  Hied  to  procure  the  foreclosure  or  satisfaction  of  a  mort- 
gage, the  Court,  instead  of  proceeding  to  a  sequestration  in  the 
nuinner  thereinbefore  directed,  may  decree  a  sale  of  the  mort- 
gaged premises,  or  of  such  part  thereof  as  may  be  necessary  to 
discharti-e  the  mortgao-e  and  the  costs  of  suit,  as  in  other  cases. 
But  no  provision  is  made,  in  case  the  mortgaged  premises  do 
not  sell  for  enough  to  satisfy  the  mortgage  debt,  for  collecting 
the  balance  in  this  Court  by  execution  or  sequestration.  The 
S2d  section,  in  si^eaking  of  sequestration,  has  reference  to  equit- 
able demands  only,  which  cannot  be  enforced  at  law,  and  which 
the  injured  party  is  under  the  necessity  of  enforcing  in  a  court 
of  equity.  Before  any  statutory  regulation  on  the  subject,  the 
mortgagee  could  come  into  this  Court  for  a  foreclosure  or  sale 
of  the  mortgaged  premises  only;  and  if,  on  a  sale,  the  mort- 
gaged premises  did  not  bring  enough  to  satisfy  the  whole  debt, 
he  liad  to  sue  upon  his  bond,  or  other  evidence  of  debt,  at  law. 
And,  as  the  statute  has  not  altered  the  law  in  this  recpect,  as 
to  non-resident  mortgagors  wlio  have  not  appeared,  he  must 
still  ha^•e  recourse  to  his  legal  remedy  against  them,  for  any 
balance  remaining  after  a  sale  of  the  mortgaged  premises. 

The  Jieri  facias,  and  all  proceedings  had  under  it  must  be 
set  aside,  and  held  for  nought;  and  complainant  must  have 
leave  to  prosecute  at  law  for  the  balance  of  the  mortgage  debt. 


iP.C- 


471  CASES  IN  CHANCERY. 


Wood  V.  Savaore. 


[===471]  "^^Ross  W.  Wood,  Alexander  H.  Grant,  and 
Benjamin   B.   Wood     v.     Moses    B.   Savage 
and   Sophia,   his   wife,   Moses  Savage,  William 
Savage,  and   Eueotas  P.   Hastings. 

a  settlement  after  marriage,  on  a  wife,  of  property  belonging  to  her  before 
marriage,  in  pursuance  of  an  antenuptial  parol  agreement,  is  good  against 
creditors. 

Where  the  property  was  money,  and  was  to  be  invested  by  the  husband,  when- 
ever a  favorable  opportunity  offered,  in  the  purchase  of  real  estate  in  the 
wife's  name  and  for  her  benefit,  and  the  money  was  used  by  the  husband 
in  his  business  without  the  wife's  consent,  and  was  not  laid  out  in  pursu- 
ance of  the  agreement  until  after  the  expiration  of  two  years,  the  convey- 
ance to  the  wife  was  held  to  be  good  agamst  the  creditors  of  the  hus- 
band.^ 

In  November,  1838,  complainants  obtained  a  judgment 
against  Moses  B.  Savage  and  William  Savage,  as  partners,  for 
$1,852.67  damages,  and  $21  costs,  on  wbicli  an  execution  was 
taken  out  and  returned  unsatisfied.  Thev  then  filed  their  bill 
to  have  their  judgment  satisfied  out  of  equitable  assets,  belong- 
ing to  the  judgment  debtors;  and  a  store  and  lot  of  ground  in 
the  city  of  Monroe,  conveyed  by  the  judgment  debtors  to  Mo- 
ses Savage,  their  father,  in  May,  1838;  and  a  farm  in  Washte- 
naw county,  one  undivided  half  of  which  was  conveyed  to 
Sophia,  wife  of  Moses  B.,  on  November  27th,  1837,  by  one 
Reighley,  and  the  other  undivided  half  thereof^  on  June  4th, 
1839,  by  one  Phelps.  Moses  B.,  having  a  life  estate  in  the  farm 
as  tenant  by  the  courtesy,  in  May,  1840,  conveyed  his  interest 
therein,  by  quit-claim  deed,  to  Moses  Savage.  The  bill  charged 
that  this  last  conveyance,  and  the  conveyance  of  the  store  and 
lot  in  Monroe,  were  made  to  defraud  the  creditors  of  Moses  B. 
and  William  Savage;  and  that  the  deeds  from  Reighley  and 
Phelps  for  the  Washtenaw  farm,  were  taken  in  Sophia's  name 
for  a  like  purpose. 

^Reversed  in  2  Doug.,  316.     See  Westbrook  v.  Comstock,  ante,  314,  note. 
426 


FIRST  CIPwCUIT,  SEPTEMBEE,  1S44.  472 

Wood  V.  Savage. 

■^Tlie  (Ictbiuliiuts  answered  severally,  denying  the  fraud  ['^•4"^] 
with  which  they  were  charged,  or  any  intention  to  defraud 
the  creditors  of  Moses  B.  and  William  Savage.  The  following 
facts,  also,  appeared  in  the  case.  The  consideration  paid  l)y 
Moses  Savage  for  the  projjerty  in  Monroe,  was  8S00  cash.  Mo- 
ses B.  and  William  were,  at  the  time,  in  want  of  money  to  pay 
some  honorable  or  confidential  debts;  and  the  whole  of  the  8S0O 
was  used  by  them  for  that  purpose.  The  consideration  paid 
for  Moses  B.'s  life  estate  in  the  Washtenaw  farm,  was  $700. 
This  was  also  paid  in  cash  to  Moses  B.,  and  the  money  used  by 
him  in  paying  his  individual  debts,  and  the  debts  of  the  firm 
of  M.  B.  &  W.  Savage.  The  Washtenaw  farm  was  purchased 
with  the  money  of  Sophia,  under  the  following  circumstances. 
Moses  B.  and  Sophia  were  married,  in  October,  1835,  in  the 
city  of  New  York,  where  Sophia  then  resided.  She  was  at  that 
time  a  widow,  and  had  one  child;  and,  having  $1,500  of  her 
own,  mostly  in  cash,  it  was  agreed  between  Moses  B,  and  her, 
on  the  evening  of  the  day  preceding  their  marriage,  that  he 
should  take  the  $1,500,  and  invest  it  in  real  estate  in  Michigan, 
whenever  a  favorable  opportunity  offered,  in  her  name,  and  for 
her  benefit;  and  a  part  of  the  money  was  then  handed  to  him, 
and  the  balance  of  it  in  a  short  time  after  their  marriage.  In 
November,  1837,  Moses  B.,  with  the  assent  of  his  wife,  pur- 
chased for  her  an  undivided  half  of  the  Washtenaw  farm,  of 
Reighley,  for  $1,050,  and  paid  for  it;  and,  in  June,  1839,  the 
other  half  of  the  farm,  with  her  approbation  and  consent,  was 
purchased  for  her  of  Phelps,  for  $1,500,  of  which  $500  was 
paid,  and  the  balance  secured  by  a  mortgage  from  her  to  Phelps, 
and  her  promissory  notes,  signed  by  Moses  B.,  as  her  surety. 
The  notes  and  mortgage  had  not  been  paid. 

*J..  D.  Fmser  &  A.  Davidson,  for  complainants.        ["^'473] 

Moses  B.  Savage  became  entitled,  immediately  upon 
his  marriage  with  Sophia,  to  all  of  her  personal  property,  and 
such  chases  in  action  as  should  be  reduced  to  possession ;  and 
the  money  claimed  by  her  as  a  trust  fund  for  her  benefit  Avas 
in  this  situation.     Reeve's  Dom.  Rel.  1,  161;  Clancy's  Rights 

427 


474  CASES  IK  CHANCERY. 

Wood  r.  Savage. 

of  Married  Women,  1;  Co.  Litt.  112,  h;  8  Mass.  R.  99,  229;  7 
Pick.  II.  65;  8  Pick.  R.  21S;  12  Pick.  R.  173.  And  equity 
cannot  settle  the  wife's  property  npon  lier,  after  it  has  been  re- 
duced to  possession  by  the  husband.  2  McCord  Ch.  R.  40;  1 
Eq.  Dig.  (Barb,  and  Harr.)  233.  The  promise  of  Moses  B.  to 
make  the  settlement,  bein*^  a  parol  promise,  could  not,  under 
the  statute  of  frauds,  create  him  a  trustee,  in  such  manner  as 
to  sustain  a  settlement  made  long  after,  when  he  was  embar- 
rassed, and  owing  the  debt  for  which  this  suit  is  brought.  1 
Story  Com.  on  Eq.  366-7;  1  Strange  R.  236;  2  Lev.  R.  146; 
3  J.  C.  R.  488;  1  J.  C.  R.  343;  Laws  1833,  302;  4  J.  C.  R.  45; 
1  Pet.  R.  460;  12  Serg.  &  R.  448;  3  Dessaus.  R.  230;  2  Nott 
&  McCord  R.  544. 

The  deed  by  Moses  B.  to  his  father,  of  tlie  life  estate  of  the 
former  in  the  Washtenaw  farm,  is  fraudulent.  A  party  can 
assign^  but  cannot  sell,  such  an  interest. 

The  deed  of  the  Monroe  property  should  be  set  aside  for  in- 
adequacy of  consideration. 

II.  N.  Walker,  for  defendants  Sophia  and  Moses  Savage. 

The  rights  of  Sophia  Savage  are  derived  from  a  purchase 
made  in  pursuance   of  an    antenuptial   contract    for  a   good 
and  valuable  consideration  other  than  rnarriage,  and  witli 
money  furnished  by  the  wife  before  marriage.     Such  a  con- 
tract might  be  enforced  against  a  husband  in  equity;  and 
[*474]  being  executed  cannot  be  set  aside.  Reeve's  Dom.  R.*174, 
et  seq.;  2  Paige  R.  303.     And  a  husband  has  a  right  to 
make  a  reasonable  settlement,  even  although  there   may  be 
creditors  at  the  time.     2  P.  Wms.  R.  694.     A  clear  distinction 
is  taken  in  all  the  cases,  between  settlements  made  in  consider- 
ation of  marriage  only,  and  others.     6  Ves,  R.  759;  17  Yes. 
R.  271;  9  Yes.  R.  193;  2  Yes.  R.  18;  3  J.  C.  R.  494.     The 
The  case  of  Taggert  v.  Talcott,  2  Edw.  Ch.  R.  628,  is  very 
similar  to  this.     The  portion  of  the  property  purchased  from 
Reighley  was  bought  before  the  complainants  obtained  their 
judgment,  and  is  not  affected  by  any  claim  of  theirs,  even  if 
such  claim  could  affect  the  rest. 
428 


FIRST  CIRCUIT,  SEPTEMBER,  1844.  475 

Wood  r.  Savage. 

The  statute  of  frauds  in  existence  wlien  tliis  agreement  was 
made,  applies  only  to  promises  ujpon  coneideration  of  mar- 
riage, <&G.     Laws  1833, 342. 

The  Chancellor.  Regarding  the  purcliase  of  the  "Washte- 
naw farm  as  a  performance  of  the  antenuptial  parol  agreement, 
and  in  the  light  of  a  settlement,  after  marriage,  of  the  wife's 
jn-operty  on  her,  in  pursuance  of  such  agreement,  the  question 
is,  whether  or  no  such  settlement,  made  after  marriage,  and 
having  nothing  but  the  antenuptial  parol  agreement  to  support 
it,  was  fraudulent  and  void  against  the  tlien  existing  creditors 
of  the  husband. 

The  complainants  were  creditors  of  the  husband,  when 
Phelps'  undivided  half  of  the  farm  was  purchased,  if  not  when 
the  first  purchase  was  made  of  Reighley. 

The  case  of  Reade  v.  Livingston,  3  J.  C.  R.  481,  is  relied 
on  as  authority  against  the  validity  of  such  settlements, 
as  to  existing  creditors.  The  point,  however,  was  not  decided 
in  that  case,  nor  was  it  necessary  to  decide  it.  Chancellor 
Kent  discussed  it  at  some  length,  and  intimated  an  opin- 
ion adverse  to  the  validity  of  such  settlements;  but  he  de- 
cided there  was  no  antenuptial  contract  proved,  and  held 
the  settlement  void  in  that  case,  on  the  ground  of 
*its  being  voluntary,  and  made  after  marriage,  by  a  [*475] 
party  indebted  at  the  time.  The  only  difficulty  he 
found  in  sustaining  such  settlements,  was  the  statute  of  frauds. 
He  admits  that  prior  to  the  statute,  such  settlements  were  held 
to  be  good;  and  refers  to  Gi'iffiti  v.  Stanhope,  Cro.  Jac.  454, 
and  Sir  Ralph  Bovy's  case,  1  Vent.  R.  193,  in  which  a  "  settle- 
ment after  marriage,  in  pursuance  of  a  prior  parol  agree- 
ment was  held  good."  '"  But,"  he  says,  "  these  were  cases  prior 
to  the  statute  of  frauds  (29  Charles  II.)  which  renders  void  all 
promises  in  consideration  of  marriage;  and,  therefore,  since 
the  statute,  it  has  been  determined  that  the  agi'eement,  to  be 
valid,  must  be  in  writing;"  and  refers  to  the  case  of  Moiitacute 
V.  Maxwell,  1  Str.  236;  1  P.  AVms.  R.  CIS.  That  was  a  bill 
by  a  wife  against  her  husband,  for  a  settlement  of  her  property 

429 


476  CASES  IN  CHANCEEY. 

Wood  v.  Savage. 

on  her,  in  pursuance  of  an  antenuptial  agreement.  It  was, 
therefore,  a  case  clearly  within  the  statute;  but  is  has  no  bear- 
iug,  that  I  am  able  to  discover,  on  the  question.  It  is  one  thing 
to  decree  the  specific  performance  of  a  parol  agreement,  and 
another  to  declare  such  agreement,  when  executed,  fraudulent 
and  void.  The  statute  requiring  such  agreement  to  be  in  wri- 
ting, it  seems  to  me,  does  not  require  such  a  construction.  It 
was  not  made  for  the  benefit  of  creditors,  as  the  statute  against 
fraudulent  conveyances,  but  to  prevent  perjury,  and  secure 
more  circumspection  in  entering  into  certain  classes  of 
contracts.  In  Dundas  v.  Dutens,  1  Yes.  R.  196,  Lord 
Thurlow  was  of  opinion  such  settlements  were  good  against 
creditors. 

Such  a  settlement  cannot  be  regarded  as  a  voluntary  settle- 
ment after  marriage.  The  parol  agreement,  which  the  husband 
was  morally,  and  in  conscience,  bound  to  perform,  is  a  sufficient 
consideration  to  sustain  the  settlement.     Such  was  the  opinion 

of  Lord  Parker,  who  decided  the  case  of  Montacute  v. 
[*476]  Maxwell.     In  the  language  of  ^Chancellor  Kent,  "  he 

thought,  however,  that  if  the  husband,  after  marriage, 
liad  in  writing  admitted  the  former  agreement,  it  might  have 
been  material,  and  a  sufficient  consideration  to  support  a  sub- 
sequent promise  in  writing."  In  many  cases  at  law,  a  moral 
obligation,  as  contradistinguished  from  a  legal  liability,  has 
been  held  a  sufficient  consideration  to  support  a  promise  and 
why  not  in  equity,  not  to  support  a  naked  promise,  but  per- 
formance? If  the  agreement  had  been  reduced  to  writing,  this 
Court  would,  after  the  marriage,  on  a  bill  filed  by  the  wife, 
have  compelled  the  husband  to  lay  out  the  $1,500  in  real  estate 
for  lier. 

By  the  statute  in  existence  when  the  marriage  took  place, 
(Laws  of  Michigan,  1833,  p.  312,  §  10,)  no  action  could  be 
brought,  whereby  to  charge  any  person,  upon  any  agreement 
made  in  consideration  of  marriage,  unless  sach  agreement,  or 
some  note  or  memorandum  thereof,  was  in  writing,  and  signed 
by  the  party  to  be  charged  therewith,  or  some  person  by  him 
authorized.     This  part  of  the  statute  has  no  reference  to  cred- 

430 


FIEST  CIECUIT,  SEPTEMBER,  1844.  477 

Wood  V.  Savage. 

itors,  wlio  are  not  mentioned  in  connection  with  the  contracts 
required  to  be  in  ^vl'itin<^;  much  less  does  it  declare  such  con- 
tracts, when  not  in  writing,  fraudulent  and  void  against  credit- 
ors. As  I  Lave  already  stated,  it  was  not  made  for  tlie  benefit 
of  creditors,  but  for  an  entirely  different  object.  The  liusljand 
having,  of  his  own  accord,  done  what  he  was  morally  bound  to 
do,  and  what  the  Court,  but  for  the  statute,  would  have  com- 
pelled him  to  do, — shall  what  he  has  done  be  declared  fraudu- 
lent and  void?  I  know  of  no  case  going  this  length;  and  it 
would,  it  appears  to  me,  be  a  strange  doctrine  for  a  court  of 
equity  to  advance,  that  an  act,  which  a  party  was  in  conscience 
bound  to  do,  was  at  the  same  time  fraudulent  and  void  as  to 
creditors. 

Moses  B.  says  he  was  solvent,  and  worth  between  four 
*and  five  thousand  dollars,  when  he  was  married;  and  [*477] 
that  the  fifteen  hundred  dollars  were  not  immediately 
invested,  as  real  estate  was  at  the  time  rising  in  value,  and  could 
not  be  purchased  on  favorable  terms.  In  IS^ovember,  1837,  two 
years  after  the  marriage,  the  Reighley  half  of  the  farm  was 
purchased,  and  paid  for.  This  was  a  year  before  complainants 
obtained  their  judgment.  In  June,  1839,  the  other  half  was 
purchased  of  Phelps,  $500  paid,  and  a  mortgage  executed  by 
Sophia,  and  promissory  notes  by  her  and  her  husband,  for  the 
balance  of  the  purchase  money,  which  is  still  unpaid,  and  a  lien 
upon  the  farm.  I  see  nothing  to  induce  a  belief  the  farm  was 
not  purchased  in  good  faith,  and  in  execution  of  the  antenup- 
tial agreement.  The  fiict  that  the  $1,500  was  used  by  the  firm 
of  M.  B.  &  W.  Savage,  in  their  business,  until  a  favorable  op- 
portunity offered  for  investing  it  in  real  estate,  is  no  evidence 
of  fraud,  or  of  a  determinatit»n  on  the  part  of  Moses  B.  not  to 
keep  his  agreement  with  his  wife.  It  was  used  without  the 
consent  or  approbation  of  Sophia, 

As  to  the  ])ropertv  in  Monroe,  it  was  sold  to  Moses  Savage, 
to  enable  M.  B.  &  W.  Savage  to  pay  a  confidential  debt.  It 
was  sold  for  $800,  cash,  at  a  time  of  great  pecuniary  distress, 
wiien  money  was  scarce,  and  real  estate  a  drug  that  could  hardly 
be  sold  for  cash  at  any  price,  llie  witnesses  examined  to  prove  its 

431 


Iw478l 
56    179 


478  CASES  IN  CHANCERY. 


Bai'.ey  r.  Gould  ;  Gould  v.  Bailey. 


value  at  the  time,  state  it  was  wortli  a  tlionsand  dollars  in  cash. 
Conceding  this  point,  the  inadequacy  of  price  is  not  sutBcientlj 
great  to  warrant  an  inference  of  fraud.  More  especially,  as 
fraud  is  unequivocally  denied;  the  $800  was  paid  in  cash,  and 
went  to  pay  the  debts  of  the  firm ;  and  Moses  B.  states  he  then 
believed  himself  solvent,  and  able  to  pay  all  his  debts. 

No  question  is  made  as  to  the  adequacy  of  the  price  paid  for 

Moses  B.'s  life  estate  in  the  farm. 
[■*4T8]      *The  bill  must  be  dismissed,  but  without  costs,  against 

all  the  defendants  except  Moses  B.  and  William  Savage; 
against  whom  it  may  be  necessary  to  retain  it  until  the  re- 
ceiver's account  of  the  property  that  has  come  into  his  hands  is 
settled. 


James  Bailey  v.  Amos  Gould. 
Amos  Gould  v.  James  Bailey. 

Anything  done  by  a  first  mortgagee  to  the  prejudice  of  a  second  mortgagee, 
with  a  knowledge  of  the  second  mortgage,  should,  to  the  extent  of  such 
injury,  postpone  the  first  to  the  second  mortgage.^ 

A  creditor  may  extend  the  time  for  his  debtor  to  pay  in,  without  discharging 
the  sureties,  if  he,  by  the  same  agreement,  in  express  terms,  reserves  his 
remedy  against  them. 

Where  the  holder  of  a  mortgage  released  a  note  which  was  given  with  it,  re- 
serving at  the  same  time  his  right  to  foreclose  the  mortgage  on  the  land, 
and  a  second  mortgagee,  with  notice  of  the  first  mortgage,  had,  prior  to 
the  release,  foreclosed  his  own  mortgage  at  law,  and  purchased  the  prem- 
ises, the  latter  was  held  to  stand  in  the  place  of  a  purchaser  of  the  equity 
of  redemption  subject  to  the  first  mortgage,  and  the  premises  in  his  hands, 
as  such  purchaser  with  notice,  to  be  the  primary  fund  for  the  payment  of 
the  first  mortgage. 

Where  a  foreclosure  bill  did  not  state  that  anything  was  due  on  the  note  ex- 
ecuted with  the  mortgage,  or  whether  any  proceedings  had  been  had  at 
law  for  the  recovery  of  the  debt,  it  was  held  to  be  demurrable. 

1  See  James  v.  Brown,  11  Mich.,  25;  Trowbridge  v.  Harleston,  ante,  185. 
432 


FIEST  CIRCUIT,  SEPTEMBER,  1844.  479 

Bailey  v.  Gould  ;  Gould  v.  Bailey. 

The  law  does  not  i-aise  a  presumption  of  non-payment,  but  of  payment  when 
due,  unless  the  contrai'y  is  shown  by  production  of  the  note,  or  other  evi- 
dence ropelHnfj  the  presumption  of  law  when  the  note  itself  cannot  be 
produced.' 

The  assignment  of  a  mortgage,  without  the  debt  which  it  is  given  to  secure, 
carries  no  beneficial  interest  in  the  mortgage  to  the  assignee,  who  would 
hold  it  subject  to  the  will  and  disposal  of  the  creditor.* 

*Oeiginal  and  cross  1)ills.  '  [*479] 

The  first  is  filed  for  the  foreclosure  of  a  mortgage  on 
forty  acres  of  land,  executed  by  Cyrus  Miller  to  Laura  "W". 
AVhitney,  on  the  25th  of  October,  1838,  for  the  payment  of 
$529.20,  with  interest,  by  the  first  day  of  January,  1841,  for 
which  amount  a  promissory  note  was  at  the  same  time  executed 
by  Miller.  Miller  afterwards,  in  December,  1838,  mortgaged 
the  same  premises,  with  an  additional  forty  acre  lot,  to  Amos 
Gould,  for  the  payment  of  $670.50;  one  half,  with  interest,  on 
the  first  day  of  June,  1839,  and  the  other  half,  with  interest, 
on  the  first  day  of  June,  1840.  This  last  mortgage  was  recorded 
on  the  first  day  of  January,  1834,  and  before  the  Whitney 
mortgage,  which  was  recorded  on  the  twenty-eighth  day  of 
September  of  that  year.  The  original  bill  states  that  Bailey, 
on  the  seventeenth  of  April,  1841,  was  appointed  guardian  to 
Charles  Whitney,  Morlan  E.  Whitney,  and  Willard  Whitney, 
infants  under  the  age  of  fourteen  years,  by  the  Probate  Court 
of  Oakland  county;  and  that,  on  the  same  day,  Laura  W. 
AVhitney  assigned  to  him,  as  guardian  of  said  minors,  and  for 
their  benefit,  the  sum  of  $278.78,  part  and  parcel  of  the  moneys 
secured  by  said  mortgage;  and,  in  consideration  of  $348.94, 
paid  to  her  by  complainant,  she  then  and  there  assigned  to 
him  all  her  interest  in  the  balance  of  said  mortgage,  for  his 

1  See  Young  v.  McKee,  13  Mich.,  552. 

When  payment  is  an  issue  made  affirmatively  by  the  debtor,  tlie  burden  of 
proof  thereof  is  on  him.     Adams  r.  Field,  25  Mich.,  16. 

^  A  quit-claim  deed  of  the  mortgaged  premises  by  the  mortgagee  may  ope- 
rate as  an  assignment.  Niles  r.  Kansibrd,  1  Mich.,  o38;  Thaj-er  v.  McGee, 
20  id.,  195. 

See,  also,  Gilberts.  Cooley.  ^^osY.,  494. 

As  to  indorsement  of  note  not  being  necessary  when  there  is  a  fonnal  as- 
signment of  the  mortgage,  see  Pease  r.  Warren,  29  Mich.,  9. 

YoL.  I.— 28  433 


iSO  CASES  IN  CIIAXCERY. 

Bailey  v.  Gould  ;  Gould  v.  Bailey. 

own  use.  The  bill  further  states  that  Gould  had  foreclosed  his 
mortgage  at  law,  by  advertisement  and  sale  under  the  statute; 
that  the  mortgaged  premises  were  purchased  by  him ;  that  the 
time  of  redemption  had  expired  and  the  sale  had  become  ab- 
solute; and  charges  him  with  notice  of  the  mortgage  to  Mrs, 
Whitney,  when  Miller  mortgaged  to  him. 

The  defendant  in  his  answer  denies  all  knowledge  of  the 
Whitney  mortgage  when  he  took  his  mortgage.  He  also 
p480]  denies  all  the  other  material  facts  stated  in  the  bill,  *and 
leaves  complainant  to  prove  them,  except  such  as  relate 
to  his  own  mortgage,  and  the  foreclosure  thereof  at  law,  which 
are  admitted.  And  he  insists  it  does  not  appear  from  the  bill, 
that  the  note,  to  secure  the  payment  of  which  the  Whitney 
mortgage  was  given,  has  not  been  paid;  or  that  it  passed  to 
complainant  on  the  assignment  of  the  mortgage;  or  that  it  is 
in  existence  as  an  outstanding  claim  against  Miller;  and  claims 
the  same  benefit  from  his  objections  as  though  he  had  demurred 
to  the  bill. 

A  replication  was  filed,  and  testimony  taken  by  both  par- 
ties; and,  in  order  to  make  Miller  a  witness,  to  prove  notice  to 
defendant  of  the  Whitney  mortgage,  the  following  release  was 
executed  to  him  by  complainant: 

"  Know  all  men  by  these  presents,  that  I,  James  Bailey,  of 
Troy,  in  the  county  of  Oakland,  in  the  State  of  Michigan,  in 
consideration  of  one  shilling  to  me  in  hand  paid  by  Cyrus 
Miller,  the  receipt  whereof  I  hereby  acknowledge,  do  by  these 
presents  covenant,  for  myself,  my  heirs  and  assigns,  that  I  will 
not,  and  they  shall  not,  sue,  prosecute,  or  collect  from  said 
Miller,  his  heirs  or  assigns,  a  certain  promissory  note  made  by 
said  Miller  to  Laura  W.  Whitney,  for  the  sum  of  five  hundred 
and  twenty-nine  dollars  and  twenty  cents,  and  interest,  dated 
October  twenty-fiftli,  in  the  year  eighteen  hundred  and  thirtv- 
eight,  and  payable  on  or  by  the  first  day  of  January,  in  the 
year  eighteen  hundred  and  forty-one.  And  I  also  further 
covenant  that  I  will  not,  and  my  heirs,  executors,  administra- 
tors and  assigns  shall  not,  sue,  prosecute,  or  collect  from  said 
Miller,  his  heirs,  administrators,  or  assigns,  the  whole  or  any 

434 


FIRST  CIRCUIT,  SEPTEMBER,  \SU.  481 

Bailey  v.  Gould;  Gould  v.  Bailey. 

part  of  the  sum  of  money  and  interest  mentioned  in  said  note, 
by  virtue  of,  or  by  any  action  upon,  a  certain  covenant  to  pay 
the  said  sum,  made  by  said  Miller,  in  a  certain  indenture  of  mort- 
gage bearing  even  date  with  said  promissory  note,  and 
executed  by  said  Cyrus  Miller  to  said  *Laura  W.  Wliit-  [*481] 
ney,  to  secure  the  payment  of  the  same,  and,  together 
with  the  said  note,  assigned  to  me  by  said  Laura  W.  AVhitney, 
on  the  seventeenth  day  of  April,  in  the  year  eighteen  hundred 
and  tbrty-one;  hereby  releasing  and  discharging  the  said  Cyrus 
Miller,  his  heirs  and  assigns,  from  all  personal  liability  on  said 
promissory  note  and  covenant. 

"  Provided,  nevertheless,  that  nothing  herein  contained  shall 
be  so  construed,  as  to  invalidate  the  said  mortgage,  and  the 
lien  or  security  of  the  same  upon  the  mortgaged  premises,  or 
to  prevent  the  foreclosure  and  sale,  or  set-off  of  said  premises, 
for  the  amount  of  said  promissory  note  and  interest,  in  equity, 
or  under  the  statute  in  such  case  made  and  provided.  In  wit- 
ness whereof  I  have  hereunto  set  my  hand  and  seal  this 
twelfth  day  of  December,  A.  D.  1842. 

.  James  Bailey,  [l.  s.] 

In  presence  of  George  F.  PorterP 

Gould  afterwards  filed  a  cross  bill,  setting  forth  the  release 
and  insisting  upon  it  as  a  discharge  of  the  mortgage,  to  which 
Bailey  demurred;  and  the  two  bills  were  brought  to  a  hearing 
— the  original  bill  on  the  pleadings  and  proofs,  and  the  cross 
bill  on  the  demurrer. 

J.  F.  Joy,  for  Bailey. 

E.  B.  Harrington,  for  Gould. 

The  Chancellor.  I  shall  first  dispose  of  the  cross  bill; 
for,  if  that  can  be  sustained,  there  is  an  end  of  the  original 
bill.    * 

The  release  does  not  in  terms  discharge  the  debt.  The  per- 
sonal liability  of  Miller  on  the  note,  and  on  the  covenant  in 
the  mortgage  for  the  payment  of  the  debt,  is  released,  while  the 

435 


482  CASES  IX  CIIAKCERY. 

Bailey  v.  Gould;  Gould  v.  Bailey. 

right  to  collect  the  debt  by  a  foreclosure  of  the  mort- 
[*4:S2]  gage,  at  law,  or  in  equity,  is  in  express  *terms  reserved. 

x^Tothing  is  more  clear  than  the  intention  of  the  parties 
to  the  release,  that  Bailey  should  look  to  the  mortgaged  prem- 
ises alone  for  payment.  But  it  is  said  Gould,  as  subsequent 
mortgagee,  (and  as  to  the  cross  bill  he  must  be  considered  in 
that  light,  or  rather  in  the  light  of  a  purchaser  under  a  fore- 
closure of  a  second  mortgage  with  notice  of  the  first,)  should 
be  regarded  as  standing  in  the  place  of  a  surety.  That  on  re- 
deeming the  prior  mortgage,  he  would  by  the  rights  of  sub- 
roii'ation,  be  entitled  to  the  note  as  well  as  the  first  mortg-asre ; 
and  that  the  release  would  cut  off  liis  personal  remedy  against 
the  morto-ao-or  on  the  note. 

Any  thing  done  by  a  first  mortgagee  to  the  prejudice  of  a 
second  mortgagee,  with  a  knowledge  of  the  second  mortgage, 
should,  to  the  extent  of  such  injury,  postpone  the  first  to  the 
second  mortgage. 

If  Gould  were  a  surety  so  far  as  regarded  his  mortgage,  in 
the  strict  sense  of  the  word,  he  would  not  be  discharged  by 
the  release;  because  the  remedy  against  him,  tha't  is  the  land, 
is  expressly  reserved.  It  was  decided,  in  Clagett  v.  Salmon,  5 
Gill  &  John.  R.  314,  a  creditor  might  extend  the  time  for  his 
debtor  to  pay  in,  without  releasing  the  sureties,  if  he,  by  the 
same  agreement,  in  express  terms,  reserves  his  remedy  against 
them.  The  case  was  appealed,  and  the  appellate  Court,  in 
affirming  the  decree  of  the  Chancellor,  say,  "  But  if  the  credi- 
tor reserves  his  remedy  against  the  sureties,  in  the  contract  he 
makes  with  the  principal  debtor,  the  debtor  thereby  tacitly 
consents  to  forego,  or  waive,  the  benefit  of  sucli  contract,  in 
case  the  creditor  should  afterwards  find  it  necessary  to  resort 
to  the  sureties,  for  the  full  and  complete  extinguishment  of 
his  debt." 

But  there  is  another  view  of  the  case.     Gould  had  foreclosed 

his  mortgage  at  law,  before  the  release  was  given. 
[*483]  *IIe  was  not  at  tliat  time  a  subsequent  mortgagee.     He 

had  previously  changed  his  character  of  mortgagee  for 
that  of  purchaser  at  the  mortgage  sale.     jSTow,  if,  when  he  took 

436 


FIRST  CIRCUIT,  SEPTEMBER,  1844.  484 

Bailey  v.  Gould;  Gould  r.  Bailey. 

liis  mortgage,  he  had  notice  of  the  Whitney  niort^ai^e,  althoiii^h 
liis  mortgage  was  Urst  recorded,  that  can  avail  hiiii  nothing, 
und  he  stands  in  the  phice  of  a  purcliaser  of  the  equity  of 
redemption  under  the  second  mortgage,  subject  to  the  first 
mortgage;  and  the  premises  in  his  hands,  as  such  purchaser 
with  notice,  are  the  primary  fund  for  the  payment  of  the  first 
mortgage.  Coxe  v.  Wheeled',  7  Paige  R.  248.  The  release, 
therefore,  could  work  no  injury  to  him.  The  cross  bill  must 
be  dismissed  with  costs. 

As  to  the  original  bill.  It  is  insisted  Miller  is  an  interested 
witness,  notwithstanding  the  release,  as  the  mortgage  to  Mrs. 
Whitney  contains  a  covenant  of  warranty,  from  which  he  is 
not  released.  The  question  is  not  one  of  title  in  the  mort- 
gagor, for  both  parties  admit  his  title,  and  claim  under  him, 
but  of  priority  under  the  registry  laws,  with  which  the  cove- 
nant of  warranty  has  nothing  to  do. 

The  bill  was  clearly  demurrable,  in  not  stating  that  anything 
was  due  on  the  note  executed  with  the  mortgage,  or  whether 
any  proceedings  had  been  had  at  law  for  the  recovery  of  the 
debt,  as  required  by  the  statute.  Nor  is  this  all.  Aside  from 
the  question  of  notice  or  no  notice,  complainant  has  not  made 
out  such  a  case  as  to  entitle  him  to  a  decree.  The  promissory 
note  is  not  in  evidence,  and,  for  aught  that  appears  from  the 
testimony,  it  may  have  been  paid.  The  law  does  not  raise  a 
presumption  of  non-payment,  but  of  payment  when  due,  unless 
the  contrary  is  shown  by  the  production  of  the  note,  or  other 
evidence  repelling  the  presumption  of  law,  when  the  note  itself 
cannot  be  produced.  Nor  is  there  any  evidence  of  an  assign- 
ment of  the  note  or  debt  to  complainant.  The  assignment 
is  of  "  all  my  right,  title,  and  interest,  or  claim,  *to  the  [*4S4] 
within  mortgage,"  No  mention  whatever  is  made  of 
the  debt  or  note.  The  assignment  set  forth  in  the  bill  is  alto- 
gether different  from  the  one  proved.  The  assignment  of  a 
mortgage,  without  the  debt  which  it  is  given  to  secure,  carries 
no  beneficial  interest  in  the  mortgage  to  the  assignee,  who 
would  hold  it  subject  to  the  will  and  disposal  of  the  creditor. 
4  J.  C.  R.  43. 

437 


485  CASES  m  CHANCEEY 


Peck  I'.  Burgess. 


As  to  the  question  of  notice,  the  evidence  is  conflicting,  so 
much  so,  that  I  have  not  been  able  to  satisfy  myself  on  which 
side  the  truth  lies.  If  this  were  the  only  point  in  the  case,  I 
should  be  disposed  to  award  an  issue  and  have  the  witnesses 
orally  examined  in  the  presence  of  a  jury,  that  more  light 
might,  if  possible  be  elicited.  As  it  is,  the  origiilal  bill,  as 
well  as  the  cross  bill,  must  be  dismissed  with  costs,  but  with- 
out prejudice. 


[*485]  *JosEPH  H.  Peck  v.  Austin  Btjkgess  et  al 

Where  a  plea  had  been  filed  to  an  original  bUl,  and  complainant  amended  his 
bill,  and  defendants  answered  the  amendments,  it  ivas  held,  that  the  plea 
was  superseded  by  the  amended  bill,  and  a  motion  to  take  it  from  the  files 
for  irregularity  was  denied,  the  proper  motion  being  to  take  the  answer 
to  the  amendments  from  the  files. 

Motion  to  take  a  plea  of  the  defendant,  Burgess,  from  the 
files,  because  it  was  not  sworn  to. 

C.  W.  Lane,  in  support  of  the  motion. 

Buckhee,  contra. 

The  Chancellor.  Defendant  pleaded  his  discharge  under 
the  bankrupt  law,  in  bar  of  complainant's  bill.  Thereupon 
complainant  amended  his  bill,  and  served  a  copy  of  his  amend- 
ments on  defendants'  solicitor,  and  defendant  put  in  an  answer 
to  the  amendments.  Comj^lainant  now  moves  to  have  the  plea 
taken  from  the  files;  and  rests  his  motion  on  the  fact  the  plea 
is  not  sworn  to.  Bj  amending  his  bill,  as  he  had  a  right  to  do, 
under  the  32d  rule,  he  admitted  the  validity  of  the  plea:  and 
the  amended  bill  standing  in  the  place  of  a  new  bill,  the  plea 
was  no  answer  to  it.     The  plea  was  superseded  by  the  new  or 

438 


FIEST  CIRCUIT,  SEPTEMBER,  1S44.  486 

Bronson  v.  Green. 

amended  bill,  to  which  the  defendant  had  the  same  time  to 
plead,  answer,  or  demur,  that  he  had  to  the  original  bill.  In- 
stead of  putting  in  an  answer  to  the  amendments  only,  which 
would  have  been  the  proper  course  if  defendant  had  filed  an 
answer  to  the  first  bill,  he  should  have  demurred,  or  put  in  a 
])lea  or  answer  to  the  amended  bill,  the  same  as  if  no  plea  had 
been  filed  by  him.  The  motion  should  have  been  to  take  the 
answer  to  the  amendments  from  the  files,  for  irregularity,  and 
not  the  plea. 
Motion  denied. 


*Arthur  Beonso]^  v.  Cogswell  K.  Geeen.     [*486] 

Where  no  answer  bad  been  put  in  to  an  injunction  bill,  leave  was  granted  to 
amend  so  as  to  waive  an  answer  under  oath,  on  payment  of  costs. ^ 

Motion  to  amend  an  injunction  bill,  so  as  to  waive  answer 
under  oath,  no  answer  having  been  filed. 

J.  F.  Joy,  in  support  of  the  motion. 

S.  Barstow,  contra. 

The  Chancellor.  "When  this  motion  was  first  made,  it  oc- 
curred to  me  complainant  should  have  waived  the  answer  under 
oath,  when  he  filed  his  bill,  and,  not  having  done  so,  that  he 
had  made  his  election  to  proceed  in  the  ordinary  course,  and 
could  not  afterwards  avail  himself  of  the  rijjht  g-iven  bv  the 
statute.  But  this  does  not  ap])ear  to  be  the  construction  given 
to  the  statute;  for,  after  answer,  complainant  may  dismiss  his 
bill,  and  file  a  new  bill,  waiving  defendant's  oath.  Burms  v. 
Looker,  4  Paige  R.  227.     Such  being  the  case,  the  only  effect 

^  See  Bank  of  Michigan  v.  Niles,  ante,  398. 

439 


487  CASES  m  CHAXCERY. 

PajTie  V.  Paddock. 

of  denying  the  motion  would  be  to  drive  complainant  to  dismiss 
his  bill  and  file  another,  at  the  expense  of  paying  the  costs  of 
the  present  suit.  Justice  does  not  require  thevadoption  of  so 
rigid  a  rule,  in  the  practice  of  the  Court. 

Motion  granted,  on  paying  $5  costs  to  defendant  for  oppos- 
inof  it. 


[*487]  *Payne  and  Payne  v.  Paddock  and  Paddock. 

Wliere  complainants  had  agreed  to  allow  defendants  to  draw  water  for  run- 
ning a  mill  from  a  certain  lake,  the  outlet  of  which  flowed  thi-ough  com- 
plainants' lands,  and  had  suffered  them  to  go  on  and  construct  a  mill  and 
race  at  an  expense  of  three  thousand  dollars,  before  informing  them  they 
did  not  intend  to  abide  by  their  promise,  an  injunction,  which  had  been 
granted  to  restrain  the  taking  of  the  water  of  the  lake  for  the  miU,  was 
dissolved.^ 

Motion  to  dissolve  injunction  on  bill  and  answer.  The  facts 
necessary  to  understand  the  case  are  set  forth  in  the  opinion  of 
the  Court. 

3f.  L.  DfCbke  and  0.  D.  Richardson,  in  support  of  the 
motion. 

For  all  the  purposes  of  this  motion,  the  answer  must  be 
taken  to  be  true.  The  complainants  stood  by,  saw  the  defend- 
ants making  their  mill,  race,  &c.,  and  encouraged  them  in  so 
doing,  by  their  promises  to  release  the  right  to  use  the  water, 
and  to  aid  them  by  donations  in  making  the  improvements, 
and  by  actually'-  helping  to  raise  the  mill;  and  never  objected 
until  about  the  time  the  works  were  completed.  Then,  after 
havino;  led  the  defendants  on  to  make  these  laro;^  outlavs,  and 
about  the  time  the  mill  was  put  into  operation,  the  complain- 

^See  Truesdail  v.  Ward,  24  Mich.,  117;  Meister  v.  Birney,  id.,  435. 
440 


FOUTtTII  CIKCUIT,  SEPTEMBER,  lSi4.         4SS 

Payne  v.  Paddock. 

ants  object,  and  demand  $500  for  the  right  to  use  the  water. 
These  facts  show  there  is  no  equity  in  the  bill;  and  they  bring 
the  case  within  the  principle  of  Eldred  v.  Mack^  Ilarr.  Ch. 
R.  164.  See  also  the  case  of  Ilohcrts  v.  Anderson,  2  J.  C.  It. 
204. 

This  is  a  case  where  the  Court  would  decree  a  specific  per- 
formance in  favor  of  the  defendants,  that  the  complainants 
should  give  them  a  release;  defendants  having  taken 
*all  the  possession  of  which  the  subject  matter  was  capa-  [*488] 
ble,  made  large  expenditures,  jjut  up  a  good  mill,  vfec, 
the  complainants  looking  on,  and  assisting.  The  refusal  to 
perform  under  these  circumstances  is  o,  fraud  upon  the  defend- 
ants, and  in  such  cases  the  Court  will  decree  a  specific  perform- 
ance. Story  Eq.  PI.  594;  Coop.  Eq.  PI.  257;  9  Yes.  R.  51G; 
2  Ves.  &  B.  R.  259;  1  Madd.  Ch.  299;  Morris  v.  Knicherbacker, 
5  "Wend.  R.  638.  And,  where  such  performance  would  be 
decreed,  an  injunction  will  be  dissolved. 

If  complainants  have  any  remedy,  it  is  at  law,  for  damages, 
and  fully  adequate. 

S.  M.  Green,  contra. 

The  Chancellor.  The  injunction  must  be  dissolved.  Be- 
fore defendants  commenced  erecting  their  mill,  they  asked  the 
privilege  of  taking  the  water  from  Strait's  lake;  which  com- 
plainants promised  to  let  them  have,  as  they  considered  the 
building  of  the  mill  would  be  worth  more  to  them  than  their 
right  to  the  water  of  the  lake.  On  this  understanding  defend- 
ants commenced  Grectiuix  their  mill  and  dio-ij-ino:  the  race;  and, 
after  they  had  expended  some  three  thousand  dollars,  and  had 
nearly  completed  their  works,  they  received  a  written  notice 
from  complainants  forbidding  their  taking  the  water  from  the 
lake,  by  means  of  their  race,  and  thereby  diverting  it  fi'om  the 
outlet  of  the  lake.  The  three  thousand  dollars  expended 
must  be  a  total  loss  to  defendants,  if  the  injunction  is  permit- 
ted to  stand,  unless  they  can  purchase  the  right  to  the  water 
of  complainants,  through  whose  land  the  outlet  of  the  lake 

441 


4S0  CASES  IN  CHANCERY. 

Payne  v.  Paddock. 

passes.  If  they  had  placed  themselves  in  this  situation 
through  ignorance  of  their  own  rights,  or  a  disregard  of  the 
rights   of  others,  however   great   their   loss,  they  would   have 

no  one  to  hlame  but  themselves.  But,  while  a  court 
[*489]  *of  equity  will  freely  give  its  aid  to  protect  an  individual 

in  the  full  enjoyment  of  his  own  rights,  against  the 
aggressions  of  another,  it  will  not  knowingly  assist  him  in  taking 
an  undue  advantage  of  another.  Hence  the  equitable  maxim,  he 
who  seeks  equity  must  do  equity.  Complainants  permitted  de- 
fendants to  go  on  upon  the  understanding  had  between  them,  and 
expend  this  large  sum  of  money,  and  then  forbade  their  taking 
the  water  from  the  lake,  and  applied  to  this  Court  for  an  injunc- 
tion to  restrain  them.  From  the  first  of  January  to  the  eiglit- 
eenth  of  June,  when  they  gave  the  written  notice,  they  knew 
defendants  were  going  forward  with  the  erection  of  their  mill 
and,  for  that  purpose,  expending  large  sums  of  money.  They 
resided  in  the  immediate  vicinity  of  it,  and  saw  the  work 
progress  from  day  to  day,  and  were  present  and  assisted  in 
raising  the  frame  of  the  mill  on  the  twenty-fifth  of  May,  without 
notifying  defendants  they  did  not  consider  themselves  bound, 
by  the  promise  they  had  made,  and  of  their  intention  to  dis- 
regard it. 

These  facts  are  stated  in  the  answer,  and  are  not,  all  of  them, 
strictly  responsive  to  the  bill,  and  defendants  will  be  requii-ed 
to  prove  them  at  the  hearing  ;  yet,  I  think,  under  the  circum- 
stances of  the  case,  the  injunction  should  be  dissolved.  Had 
an  order  to  show  cause  against  the  allowance  of  the  injunction 
been  granted,  and  the  defendants  appeared,  and  showed  for 
cause  the  facts  stated  in  their  answer,  the  injunction  would  not 
have  been  allowed.  In  Jacox  v.  Clarh,  ante  249,  a  case  resem- 
bling the  present  in  several  particulars,  the  injunction  was 
dissolved  under  somewhat  similar  circumstances. 
Injunction  dissolved. 


442 


THIRD  CIECUIT,  NOYEMBEPv,  1844.  490 


Taylor  v.  Snyder. 


=^=Heniiy  W.  Taylor,  George  T.  Gilbert  and  [*490] 
Catharine  W.  Fitch,  Trustees  &c.  of  Ja- 
BEZ  S.  Fitch,  deceased,  v.  Andrew  Snyder,  Clark 
Snyder,   and    Charles   G.   Hammond,   Auditor 
General. 

Where  F,  sold  apiece  of  land  by  wan-anty  deed  to  C.  and  took  back  a  mort- 
gage, and ;  after  his  death,  the  land  was  advertised  to  be  sold  for  taxes 
levied  before  the  sale  to  C,  and  the  executors  and  trustees  of  F.  attended 
the  sale  for  the  purpose  of  purchasing  the  land,  and  thereby  saving,  as 
thpy  supposed,  a  foreclosure  of  the  mortgage,  but  were  prevented  from 
doing  so  by  the  fraudulent  conduct  of  S.,  against  whom  they  filed  their 
bill,  it  tvas  held,  that  C.  need  not  be  a  party. 

It  was  also  held,  that  it  was  not  necessary  to  offer  in  the  bill  to  refund  the 
money  paid  by  S.  for  the  tax  title  fraudulently  obtained  by  him. 

Where  the  bill  prays  an  mjunction,  but  it  is  omitted  in  the  prayer  for  process, 
it  is  a  good  ground  for  refusing  an  injunction,  but  not  for  dissolving  it 
when  it  has  been  allowed. 

Motion  to  dissolve  injunction  for  want  of  equity  in  the  bill. 

The  bill  was  filed  by  complainants  as  trustees  and  executors 
of  Jabez  S.  Fitch,  deceased,  and  stated  that,  in  his  lifetime. 
Fitch,  being  seized,  in  fee  simple,  of  the  east  half  the  northwest 
quarter  of  section  number  twelve,  in  townsliip  number  one 
south,  of  range  number  five  west,  on  or  about  the  fourteenth 
day  of  November,  1839,  agreed  with  one  Thomas  L.  G.  Conant 
to  sell  him  said  land,  with  certain  other  real  estate  in  Calhoun 
county,  for  which  Conant  was  to  pay  him,  at  the  expiration  of 
one  year,  two  hundred  and  fifty  dollars  and  interest  at  the  rate 
of  ten  per  cent,  to  be  secured  by  a  mortgage  and  promissory 
note.  That  Fitch,  and  complainant,  Catharine  W.  Fitch, 
his  wife,  accordingly  executed  a  warranty  deed  to  Conant, 
who  gave  the  note  and  mortgage  as  agreed  upon ;  which 
mortgage  was  duly  recorded.  That  the  amount  so 
^secured  was  due,  and  no  part  thereof  had  been  paid,  [*491] 
and  no  proceedings  had  been  had  to  collect  the  same. 

443 


493  CASES  m  CHANCERY. 

Taylor «'.  Snyder. 

That  the  lot  was  advertised  to  be  sold  on  October  2d,  1S43,  for 
the  taxes  of  1838,  and  that  complainants  appeared  at  the  sale, 
by  their  agent,  Charles  T,  Gilbert,  for  the  purpose  of  bidding  it 
in,  to  save  the  expense  and  trouble  of  foreclosure;  and  that,  in 
their  opinion,  the  land  was  worth  no  more  than  the  amount  due 
on  the  mortgage.  That  Charles  T.  Gilbert  publicly  stated  his 
object  in  the  hearing,  among  others,  of  the  defendant,  Andrew 
Snyder,  who  well  knew  of  the  existence  of  the  mortgage,  and 
that  it  was  unpaid.  That  Andrew  Snyder  bid  on  said  lot  at  the 
sale,  and  offered  to  pay  the  taxes  for  the  sixteenth  part  of  an 
inch  of  the  land;  and  the  same  was  struck  off  to  him.  That 
he  neglected  to  pay  for  several  days,  and,  on  the  9th  day  of  Oc- 
tober, the  day  before  the  "sales  closed,  it  was  again  put  up,  in 
the  absence  of  said  Charles  T.  Gilbert,  and  bid  off  by  one  Wal- 
ter Martin,  in  the  name  of  Clark  Snyder,  the  brother  of  Andrew. 
That  the  said  Charles  T.  Gilbert,  on  the  day  after  the  first  sale, 
called  at  the  treasurer's  office  to  pay  the  taxes,  in  case  Andrew 
Snyder  had  not  paid  them,  and  was  informed  that  said  Andrew 
would  pay  them;  and  he  then  informed  the  treasurer,  or  his 
clerk,  of  his  willingness  to  pay  the  taxes,  in  case  the  said  An- 
drew should  neglect  to  do  so.  The  bill  charged  that  the  defend- 
ant, Clark  Snyder,  never  authorized  the  bid  in  his  name;  that 
his  name  had  been  returned  to  the  Auditor  General  as  pur- 
chaser of  the  land,  but  no  deed  of  it  had  as  yet  been  given  to 
him  or  any  one.  That  the  purchase  was  made  by  the  direction 
of  Andre  .V  who  paid  the  money,  and  that  it  was  made  in  the 
name  of  Clark  Snyder  to  deceive  and  defraud  complainants; 
the  said  Andrew  intending  to  obtain  a  conveyance  from  said 
Clark,  who  never  authorized  the  purchase  in  his  name,  or  other- 
wise. 

[^492]  *^.  Bradley^  in  support  of  the  motion. 

Fitch  conveyed  by  warranty  deed  to  Conant,  on  No- 
vember 15th,  1839,  and  was  bound  to  pay  the  tax  for  which  the 
land  was  sold.  He  who  asks  equity  must  do  equity.  In  viola- 
tion of  this  principle,  complainants  appeared  at  the  tax  sale, 
to  bid  in  the  premises  and  save  the  expense  of  a  foreclosure, 
444 


THIRD  CIRCUIT,  NOVEMBER,  184:^.  403 

Taylor  v.  Snyder. 


wlien  tlic  land  was  being  sold  for  a  tux  tliey  should  have  ])aid. 
Conant  who  is  still  the  owner  of  the  land  for  aught  that  ap- 
pears, should  be  a  party.  There  is  no  ofter  in  the  bill  to  refund 
to  A.  Snyder  the  tax  paid  by  him.  An  injunction  is  not  asked 
in  the  prayer  for  process.  Where  an  injunction  is  jjrayed  for 
in  the  prayer  of  the  bill,  but  is  omitted  in  the  prayer  for  pro- 
cess, an  injunction  will  be  refused.  1  Barb.  Ch.  Pr.  617; 
Wood  V.  Beadle,  3  Sim.  R.  273. 

Wm.  H.  Brovm,  contra. 

The  Chancellor.  The  bill  is  filed  to  have  the  tax  sale  de- 
clared fraudulent  and  void;  and  not  to  foreclose  the  mortgage. 

The  tax  was  a  lien  on  the  premises,  when  Fitch,  by  wari-anty 
deed,  conveyed  them  to  Conant,  and  took  from  him  the  mort- 
gage. It  belonged  to  Fitch,  in  his  lifetime,  to  pay  the  tax; 
and  to  complainants,  after  his  death,  as  the  devisees  and  trus- 
tees of  his  estate.  Had  they  purchased  the  premises  at  the  tax 
sale,  as  they  designed  doing,  and  probably  would  have  done  but 
for  the  gross  imposition  practised  upon  them  by  A.  Snyder, — 
for  the  bill  on  the  present  motion,  must  be  taken  to  be  true  in 
all  respects, — this  Court  would  not  permit  them  to  use  the  tax 
title  to  defeat  Conant's  title  under  their  devisor.  On  the  con- 
trary, it  would  presume  that  they  had  purchased  the  tax 
title  to  prevent  a  failure  of  Conant's  title,  and  to  *pro-  [*493] 
tect  themselves  against  a  breach  of  their  devisor's  cove- 
nant of  warranty.  Xeither  would  it  have  superseded  the  neces- 
sity of  their  foreclosing  the  mortgage,  to  cut  off  Conant's  equity 
of  redemption,  as  they  supposed. 

Complainants  have  an  interest  in  sustaining  Conant's  title, 
aside  from  the  mortgage.  If  no  mortgage  had  bene  given,  as 
devisees,  they  would  be  liable,  so  far  as  they  have  property  from 
their  devisor,  for  a  failure  of  Conant's  title.  Whatever  interest 
Conant  has  in  the  present  suit  is  consequential,  not  direct. 
Andrew  Snyder  was  guilty  of  no  fraud  as  to  him.  Conant  did 
not  ofter  to  pay  the  tax;  nor  was  he  present  at  the  sale,  and  pre- 
vented from  purchasing  the  tax  title,  for  the  better  security 

445 


40i  CASES  IX  CHANCERY. 

Gilbert  i\  Cooley. 

of  his  own  title,  by  tlie  unwarrantable  conduct  of  A.  Snyder. 
And,  should  complainants  fail  in  the  present  suit,  and  he  in  the 
end  be  ousted  by  the  tax  title,  his  remedy  against  them  on  the 
warranty  would  still  be  good.  He  is  not  therefore,  we  think,  a 
necessary  party  to  the  present  proceedings. 

The  case  made  by  the  bill  is  one  of  actual,  not  constructive 
fraud;  and,  if  sustained,  defendants  must  lose  what  they  have 
paid.  How  V.  Camj),  ante  427.  Equity  will  not  protect  them 
against  the  consequences  of  their  own  fraudulent  conduct. 

Where  the  bill  prays  an  injunction,  but  it  is  omitted  in  the 
prayer  for  process,  it  is  a  good  ground  for  refusing  an  injunction, 
but  not  for  dissolving  it  after  it  has  been  allowed. 

Motion  denied,  with  $5  costs. 


[*494]  ^Joseph  T.  Gilbert  v.  Wareen  Cooley  et  ah 

Although  a  statutory  foreclosure  be  irregular,  and  no  bar  to  the  equity  of  re- 
demption, yet  the  purchaser  at  such  sale  succeeds  to  all  the  interest  of  the 
mortgagee.^ 

Where  complainant,  after  a  statutory  foreclosure  of  a  mortgage,  filed  his  bill 
in  this  Court  to  foreclose  the  same  mortgage,  alleging  the  statutory  fore- 
closure to  have  been  invalid,  and  obtained  an  injunction,  it  was  dissolved 
on  the  ground  that  he  had  no  longer  any  interest  in  the  mortgage  or  mort- 
gaged premises,  and  that  the  purchaser  at  the  sale,  or  his  grantees,  should 
have  filed  the  bill. 

Motion  to  dissolve  injunction  for  want  of  equity  in  the  bill, 
by  complainant,  as  surviving  partner  of  the  Urm  of  Fitch  & 
Gilbert. 

The  bill  was  filed  to  foreclose  a  mortgage;  and  stated  that 
no  valid  proceedings  had  been  had  to  collect  the  same.  That 
certain  irregular  and  invalid  proceedings  had  been  taken  in 

iSee  Hoffman  r.  Harrington,  33  Mich.,  392;  Richards?;.  Morton,  18  id., 
255;  Niles  v.  Ransford,  1  id.,  338;  Bailey  r.  Gould,  ante,  478. 
446 


FOURTH  CIRCUIT,  NOVEMBER,  1S44.         405 

Gilbert  V.  Cooley. 

attempting  to  foreclose  it  under  tlie  statute,  and  that  the  ])rem- 
ises  liad  been  under  such  proceedings  advertised  and  sold  to 
one  Charles  T.  Gilbert,  who  had  subsequently  deeded  to  others. 
That  the  irregularity  in  the  proceedings  under  the  statutory 
foreclosure  consisted  in  a  mistake  in  the  description  of  the 
premises,  the  word  "  Xorth  "  being  used,  instead  of  "  South,'' 
to  designate  the  townshij)  wherein  it  was  located.  That  defend- 
ants harrassed  and  obstructed  the  present  occupants,  who  were 
the  grantees  of  Charles  T.  Gilbert,  in  the  possession  of  the  prop- 
erty, and  threatened  proceedings  at  law  to  evict  them.  Prayed 
a  foreclosure  and  sale,  and  that  defendants  might  be  enjoined 
from  committing  waste,  and  proceeding  at  law,  &c. 

^.  Bradley,  in  support  of  the  motion. 

W.  IT.  Broion,  contra. 

*The  Chancellor.  It  is  not  necessar}'  on  this  motion  [*4:95] 
to  inquire  into  the  validity  of  the  statutory  foreclosure. 
Conceding  it  to  be  irregular,  and  no  bar  to  the  equity  of  re- 
demption, the  sale  and  sherift's  deed  transferred  Fitch  and  Gil- 
bert's interest  in  the  mortgage  to  Charles  T.  Gilbert,  the 
purchaser.  Jackson  v.  Bowen,  7  Cow.  R.  13.  "Whatever  in- 
terest they  had  in  the  mortgage  at  the  time  of  sale,  he  now  has; 
and  he,  either  alone,  or  in  connection  with  his  subsequent 
grantees,  should  have  filed  the  bill;  and  not  the  complainant, 
who  has  no  interest  in  the  mortgage  or  mortgaged  premises. 
C  T.  Gilbert  is  not  a  party. 

Injunction  dissolved,  with  $5  costs. 


447 


40G  CASES  IX  CriAXCERY 


Beach  v.  White. 


Elisha  Beach  and  Charles  Williams  v.  Jonathan 
K.  White,  Louisa  D.  White  and  Phineas  White. 

A  judgment  creditor's  bill  cannot  be  sustained  to  reach  equitable  assets  or 
choses  in  action,  where  the  execution  was  returned  before  the  return  day.' 

But  whei*e  the  bill  asks  to  have  certain  conveyances  set  aside  as  fraudulent,  it 
may  be  sustained  for  that  purpose.^ 

The  assignor  of  a  judgment  is  not  a  necessaiy  party  to  a  bill  filed  by  his  as- 
signee on  the  judgment,  unless  there  is  a  controversy  between  them,  which 
makes  it  necessary  for  the  protection  of  the  defendant;  although  there  is 
no  objection  to  making  him  a  party.* 

All  voluntary  postnuptial  settlements  are  not  necessarily  bad.  They  are  good 
when  made  without  fraud,  by  a  party  not  indebted  at  the  time,  or  whose 
debts  are  trifling  compared  with  his  property.* 

Conveyances  of  real  estate  made  after  marriage  for  the  purpose  of  vesting  the 
title  in  the  wife,  the  husband  being  at  the  time  insolvent,  were  held  fraud- 
ulent and  void,  not  only  against  existing,  but  subsequent  creditors.^ 

[*496]      '"Judgment  creditor's  bill,  to  liave  a  judgment  paid 
out  of  equitable  assets  belonging  to  the  debtor,  and  to 
set  aside  certain  conveyances  as  fraudulent  against  creditors. 

The  bill  sets  forth  that  the  complainant,  Elisha  Beach,  No- 
vember 11th,  1840,  obtained  a  judgment  against  Jonathan  R. 
White,  in  the  Circuit  Court  for  Oakland  county,  for  $-473.79 
damages,  and  $40.65  costs.     That,  after  verdict,  which  was 

'  See  Smith  v.  Thompson,  ante,  1,  and  note. 

^  A  bill  cannot,  however,  be  maintained  to  set  aside  a  fraudulent  convey- 
ance until  a  levy  has  been  made.  McKibben  t\  Barton,  1  Mich.,  213.  See, 
also,  Griswold  v.  Fuller,  33  id.,  268;  Tyler  v.  Peatt,  yO  id.,  63. 

A  levy  of  an  attachment  on  an  equitable  interest  in  land  not  subject  to  at- 
tachment, where  the  defendant  is  not  served  with  process  and  does  not  appear, 
and  the  recovery  of  judgment  and  issue  of  execution  thereon,  do  not  create  such 
lien  as  equity  will  enforce.  Trask  r.  Green,  9  Mich.,  ooS.  See,  also,  May- 
iiard  V.  Hoskins,  id.,  485. 

^See  Morey  v.  Forsyth,  ante,  465. 

*  See  Cutler  r.  Griswold,  ante,  487,  and  note. 

^See  Herschfeldt  v.  George,  6  Mich.,  456;  Doak  v.  Runyan,  33  id.,  75; 
Smith  V.  Brown,  34  id.,  455. 

448 


FOURTH  CIRCUIT,  XOYEMBER,  18i4.         497 

Beach  v.  White. 

rendered  ]\rardi  2Stli,  1840.  and  before  judi^nnent,  Beacli  as- 
signed the  damages  to  the  complainant,  Williams,  as  survivor 
of  Crocker  tfe  Williams.  That,  on  the  28th  day  of  November, 
1840,  an  execution  was  issued  to  the  sheriff  of  Lapeer  county, 
returnable  on  the  second  Tuesday  of  March  thereafter,  which 
was  returned  unsatisfied  December  ICth,  1840.  That  the  judg- 
ment was  unpaid,  and  defendant  has  equitable  interests,  &c. 

The  bill  further  sets  forth  that  Jonathan,  on  or  about  April 
22d,  1840,  for  the  pretended  consideration  of  $5,000,  conveyed 
to  Phineas  AVhite  certain  lands  therein  described,  which  con- 
veyance the  bill  charges  to  have  been  fraudulent.  That,  since 
the  verdict  was  given,  and  previous  to  the  making  of  said  deed, 
said  Jonathan  had  said  he  never  would  pay  the  debt,  and  Beach 
should  never  collect  it;  and,  since  the  deed,  that  he  had  so  ar- 
ranged his  affairs  as  to  prevent  the  collection  of  it.  That  Jona- 
than is  in  possession  of,  and  equitably  owns  four  village  lots  in 
Lapeer,  which  he  pretends  belongs  to  his  wife,  which  the  bill 
charged  were  once  owned  by  liim  in  his  own  name,  with  other 
property,  and  if  the  title  was  in  her,  that  it  had  been  conveyed 
by  Jonathan  to  some  unknown  person,  who  had  deeded  it  to 
her,  that  Joanthan  might  enjoy  it,  undistured  by  his  creditors. 

The  joint  and  several  answer  of  defendants  submits  whether 
com]ilainants  ean  rightly  join  in,  or  bring  the  present 
action,  on  their  own  showing.  Denies  that  Jonathan  *has  ['^^497] 
any  property,  real  or  personal,  or  things  in  action,  ex- 
ee])t  such  as  is  exempt  by  law,  and  a  few  articles  of  trifling 
value,  which  Avould  have  been  given  up  on  the  execution  if  re- 
cpiired;  states  that  Louisa  D.  A¥hite  inherited  and  received  in 
her  own  right  $1,324.05,  for  her  own  use,  and  of  which  she  had 
control  inde])endent  of  her  husband,  which  she  authori/^ed  him 
to  invest  in  land  as  he  should  think  best  for  her  interest.  That, 
in  the  winter  of  1831-2,  he  came  to  Mieliigan,  and  purchased 
one-fourth  of  the  "  Lapeer  Mill  property,"  so  called,  of  Terry, 
Chamberliu,  and  Whittemoro,  of  Pontiac,  for  which  he  paid 
$420  of  Louisa's  money.  Also,  he  bought  of  the  U.  S.  160 
acres  of  land,  for  which  he  paid  $200,  on  which  he  made 
some  improvements  to  the  amount  of  about   $175  or  $180; 

YoL.  L— 29  449 


498  CASES  IK  CHANCERY. 

Beach  v.  White. 

making  an  expenditure  of  Louisa's  money,  up  to  September 
26tli,  1842,  of  nearly  $800.  That,  on  the  purchase  of  said  mill 
property,  Terry  executed  a  bond  for  a  deed,  to  be  given  on  cer- 
tain conditions  which  Jonathan  afterwards  performed.  That, 
in  September,  1832,  Phineas  advanced  money  to  Jonathan, 
with  which  he  purchased  the  remaining  three-fourths  of  the 
mill  pro]3erty  for  Phineas,  and  the  whole  of  it  was  then  con- 
veyed to  said  Jonathan.  That,  on  the  24th  of  October,  1832, 
Jonathan  and  Louisa  conveyed  all  their  legal  interest  in  the  lands 
to  Phineas,  who  subsequently,  on  the  ITth  of  November,  1832, 
conveyed  to  Louisa  the  160  acre  tract,  and  an  undivided  fourth 
part  of  the  other  lands;  and  that  this  course  was  adopted  by 
ad\'ice  of  counsel,  to  vest  in  Louisa  and  Phineas  their  respect- 
ive interests.  That,  when  Jonathan  made  the  conveyance  to 
Phineas  of  other  lands  therein  described,  in  April,  1840,  he 
was  indebted  to  him  in  a  sum  larger  than  the  value  of  the 
property  conveyed,  and  that  it  was  made  in  pursuance  of  a 
prior  agreement.  Denies  that  Jonathan  owns  any  prop- 
[*498]  erty  in  Lapeer,  and  states  that  the  village  *lots  men- 
tioned in  the  bill  are  a  part  of  his  wife's  property. 
States  that  he  failed  in  1828,  and  was  indebted  by  reason  there- 
of when  the  lands  were  conveyed  to  Phineas  and  Louisa  in 
1832,  but  denies  that  such  conveyances  were  made  to  defraud 
creditors. 

It  further  appeared  that  the  money  was  kept  in  Louisa's 
possession,  who  gave  parts  of  it  to  her  husband  to  invest,  at 
different  times,  and  used  a  part  herself;  and  that  there  was 
never  any  written  agreement  to  invest  it,  either  before  or  after 
marriage. 

]\J.  L.  Drake ^  for  complainants. 

The  principal  question  in  this  case  is,  whether  a  voluntary 
conveyance^  hy  a  man  who  is  at  the  time  insolvent,  can  he 
impeached  hj  subsequent  creditors. 

We  take  it  for  granted  that  White,  by  receiving  into  his 


450 


FOUrtTlI  CIPwCUIT,  NOVEMBER,  1844.         499 

Beach  r.  White. 

liands  his  wife's  money,  and  purchasing  with  it  land  in  his  own 
name,  made  the  property  his  own.     Tleeve's  Dom.  11.  1,  00. 

Wliite  being  at  tliat  time  hirgely  indebted,  and  liaving  no  prop- 
erty but  tliis,  his  creditors  had  the  undoubted  right  to  have  the 
lands  applied  inpayment  of  their  demands  while  the  title  was 
in  him.  Having  this  right,  they  could  not  be  deprived  of  it 
by  a  voluntary  conveyance. 

Voluntary  settlements  are  good  against  subsequent  creditors, 
only  when  the  settler  is  not  indehted  at  the  time.  And  posi- 
tive fraud  will  vitiate  any  such  settlement.  Hov.  on  Fraud, 
75;  Eeeve  Dom.  Eel.  176,  180;  8  AVheat.  R.  229;  Fonbl.  Eq. 
205;  Gilmore  v.  North  America  Land  Co.  1  Pet.  C.  C.  II. 
460;  Thompson  v.  Dougherty,  12  Serg.  &  R.  R.  448;  3  Des- 
saus.  1;  3  J.  C.  R.  500;  11  Mass.  R.  421. 

Hunt  (&  Watson,  contra. 

*TnE  Chancellor.  The  bill  cannot  be  sustained  as  to  ['^499] 
the  equitable  assets,  or  choses  in  action,  belonging  to 
J.  R.  AVhite,  the  judgment  debtor;— the  execution  having  been 
returned  before  the  return  day.  Smith  v.  Thom])so,i,  ante  1 
But  it  may  be  sustained  as  to  the  convevances  char^red  to  be 
fraudulent  against  his  creditors.  For  this  purpose,  it  is  only 
necessary  to  show  an  execution  has  been  issued.  Williams  v. 
Jfuhhard,  ante  28. 

Beach,  the  assignor  of  the  judgment,  is  not  a  necessarv  partv. 
Had  he  not  united  Avitli  his  assignee  in  filing  the  bill,  or  other- 
wise been  made  a  jiarty,  the  bill,  on  that  account,  would  not 
have  been  demnrnil)le.  Morey  v.  Forsyth,  ante  465.  The 
assignor  of  a  judgment  was  formerly  considered  a  necessarv 
])arty  to  a  bill  filed  by  his  assignee;  Cathcart  v.  Leans,  1  Ves. 
R.  463;  and  will  still  be  so  considered  by  the  Court,  where 
there  is  a  controversy  between  the  assignor  and  assignee  rela- 
tive to  the  assignment,  making  it  necessarv  for  him  to  be  a 
])arty  for  the  protection  of  defendant.  Id.  AVhile,  therefore, 
the  assignor  is  not,  in  all  cases,  a  necessary  party,  no  objection 
can  be  taken  to  his  being  made  a  party. 

451 


500  CASES  m  CHANCERY. 

Beach  v.  White. 

Tlie  conveyance  of  the  160  acre  lot,  and  a  quarter  of  the  mill 
property,  on  October  24:th,  1832,  by  J.  R.  White  and  liis  wife, 
to  P.  White,  and  the  reconveyance  thereof  to  the  wife  of  J.  R. 
White,  on  the  seventh  of  ISTovember  following,  were  intended 
to  answer  all  the  pni'poses  of  a  settlement  of  the  property  on 
the  wife.  As  a  settlement,  it  was  fraudulent  and  void  against 
creditors;  because  it  was  after  marriage,  not  in  piirsuance  of 
any  antenuptial  contract,  without  consideration,  and  at  a  time 
when  J.  R.  White  was  indebted  to  a  much  larger  amount  than 
lie  was  able  to  pay.  The  money  with  which  the  land  was  pur- 
chased belonged  to  Louisa  D.  previous  to  her  marriage;  but, 
on  the  happening  of  that  event,  it  became  the  property 
[*500]  *of  her  husband  by  virtue  of  his  marital  rights,  no  set- 
tlement, or  agreement  for  a  settlement  of  it,  on  her,  hav- 
ing Ijeen  made  before  the  marriage.  She  says  there  was  no 
agreement  in  writing,  or  contract  between  her  and  her  liusband, 
relative  to  the  control  or  use  of  the  money,  previous  to  the  mar- 
riage, or  subsequent.  All  postnuj^tial  voluntary  settlements 
are  not  necessarily  void  as  to  creditors.  They  are  good,  when 
made  without  any  fraudulent  intent,  and  by  a  person  not  in- 
debted at  tlie  time,  or,  if  indebted,  whose  debts  are  so  small  in 
amount,  wlien  taken  in  connection  with  the  means  still  retained 
by  him  to  pay  them,  as  to  repel  all  presumption  of  fraud  on 
their  account. 

The  debt  to  Beach  acci'ued  long  after  tlie  conveyances;  but 
they  are,  nevertheless,  fraudulent  and  void  as  to  him  and  his 
assignee.  Where  a  settlement  is  fraudulent  against  existing 
creditors,  it  is  also  as  to  subsequent  creditors.  Riclmrdson  v. 
Smallwood,  Jac.  R.  552.  The  justice  of  this  rule  is  clearly 
exemplified  in  the  present  case.  After  Beach  had  obtained  a 
verdict,  but  before  judgment,  J.  R.  White  conveyed  all  his 
property  to  P.  White,  in  payment  of  a  debt  of  $5,000.  This 
conveyance,  being  made  in  payment  of  a  bona  fide  debt,  and  no 
suspicious  circumstances  attaching  to  it,  is  good  against  the 
irrantor's  creditors.  But  more  than  one-half  of  this  debt  was 
for  money  paid  by  P.  White,  for  his  brother,  to  different  indi- 
viduals to  whom  J.  R.  Wliite  was  indebted  prior  to  the  year 
452 


FOURTH  CIRCUIT,  XOVEMBER,  1844.  501 


Weed  V.  Terry. 


1832.  So  that,  had  this  part  of  the  debt  to  P.  AVhite  been  paid 
out  of  the  property  conveyed  to  Louisa  D.,  something  wouhl 
have  been  left  to  j^ay  the  Beaeh  judgment. 

A  decree  must  be  entered  decUiring  tlie  deed  of  October  24th, 
1832,  from  J.  R.  AVhite  and  wife  to  P.  White, — so  far  as  it  re- 
lates to  the  160  acre  lot,  and  the  undivided  quarter  of  the  mill 
property, — and  the  deed  of  the  seventh  iSTovember 
^following,  from  P.  Wliite  to  Louisa  D.,  fraudulent  and  [*501] 
void  against  the  judgment  mentioned  in  the  pleadings, 
and  against  the  complainants,  and  all  other  persons  who  may 
hereafter  chilm  title  to  the  premises  through  or  under  the  judg- 
ment; and  complainants  are  to  be  at  liberty  to  sue  out  a  new 
execution  at  law,  and  to  sell  so  much  of  the  property  as  is  nec- 
essary to  pay  the  judgment,  and  to  recover  their  taxable  costs 
in  the  suit  against  J.  R.  White.  The  bill  to  be  dismissed,  with- 
out costs,  as  to  the  defendant  P.  White. 


Nathaniel  AVeed,  Harvey   AVeed  and    Henry  W. 
Barnes  v.  Joshua  Terry.' 

Where  two  parties  claim  the  same  land  under  conflicting  titles,  and  there  is 
a  doubt  as  to  which  title  is  valid,  that  fact  is  sufficient  consideration  for  an 
agreement  to  compromise  and  divide  the  land;*  and  a  specific  perfomnanci^ 
of  such  agreement,  though  not  in  writing,  will  be  decreed,  where  the 
party  seeking  it  has  acted  fairly,  and  there  has  been  a  part  performance  to 
take  it  out  of  the  statute  of  frauds.' 

The  delivery  of  possession  under  an  agreement,  is  an  act  of  part  performance/ 

^  Affirmed,  except  as  to  that  part  of  the  decree  requiring  the  husband  to 
procure  a  release  of  the  wife's  right  of  dower,  in  2  Doug.,  344. 

-  As  to  the  compromise  of  a  disputed  claim,  being  a  sufficient  consideration 
for  a  promise,  see,  also,  Van  Dyke  v.  Davis,  2  Mich.,  144;  Gates  r.  Shutts,  7 
id.,  127;  Hale  r.  Holmes,  8  id..  o7:  Moore  v.  Detroit  Locomotive  Works,  14 
id  .  2fi6;  Converse  r.  Blnnrich,  14  id.,  109;  Cassell  r.  Ross,  33  111.,  24"); 
McKinley  v.  Watkins,  13  id.,  140;  Burnside  v.  Potts,  23  id.,  415;  Farmers', 

453 


502  CASES  m  CHAE'CERY. 


Weed  V.  Terry. 


Bill  for  specific  performance. 

The  bill  states  that,  December  10th,  1839,  complainants 
obtained  a  judgment,  in  the  Circuit  Court  for  the  county  of 
Oakland,  against  Eobert  Le  Roj  and  Samuel  C.  Munson,  on 
a  bill  of  exchange  drawn  by  them,  in  favor  of  complainants, 
no  Daniel  Le  Roy,  for  $1,499.04  damages,  and  $23.42 
costs.  That  execution  was  issued  and  delivered  to  the  sher- 
iff of  Oakland  county,  who,  February  4th,  1840,  by  Linus 
Jacox,  his  deputy,  levied  on  Pontiac  village  lots  11,  12, 
[*502]  13,  34,  35  and  36,  of  the  *subdivision  of  out-lots  14, 
15,  16,  25  and  26,  according  to  the  plat  of  the  same  in 
the  register's  office  for  the  county  of  Oakland,  in  book  M.  of 
deeds,  199.  That  the  sheriff,  by  his  deputy,  gave  due  notice 
of  the  sale,  and,  on  March,  28th,  1840,  sold  the  lots  to  com- 
plainants for  $1,591.01,  the  full  amount  due  on  said  execution; 
and  made  the  proper  certificate.  That  a  mistake  occurred  in 
the  entry  of  said  levy,  and  also  in  the  notice  of  sale,  in  de- 
scribing the  premises  as  Pontiac  village  lots  11,  12,  13,  34,  35 
and  36,  according  to  the  plat  of  said  village,  as  recorded  in 


.tc,  Ins.  Co.  V.  Chesnut,  50  id.,  Ill;  Knotts  v.  Preble,  id.,  226;  Miller  v. 
Hawker,  66  id.,  185;  Nichols  v.  Bradsley,  78  id.,  44. 

For  cases  where  the  consideration  was  held  insufficient,  see  Tate  v.  Whit- 
ney, Harr.  Ch.,  145;  Holland  v.  Hoyt,  14  Mich.,  238. 

WhUe  the  settlement  of  conflicting-  claims  will  not  be  opened  to  inquire  into 
the  equities,  yet  such  protection  is  not  afforded  to  a  transaction  where  what 
the  party  gives  is  given  under  protest  that  it  is  not  payable,  and  with  an  un- 
derstanding that  he  reserves  his  defense  to  it;  a  settlement  in  the  nature  of 
a  compromise  must  be  made  as  such,  and  so  understood  on  both  sides. 
.Tennison  v.  Stone,  33  Mich.,  99. 

3 See  Hunt  v.  Thorne,  2  Mich.,  213. 

^But  possession  of  the  premises  will  not  avail  the  complainant  when  it  is 
sufficiently  explained  by  the  relationship  of  father  and  son  existing  between 
the  parties.     Jones  v.  Tyler,  6  Mich.,  364. 

A  verbal  agreement  to  advance  money  to  purchase  lands  and  to  remove  en- 
cumbrances on  them,  and  ultimately  to  transfer  them  to  another  on  repay- 
ment, where  the  latter  was  all  the  time  in  possession  and  did  no  act  to  his  own 
prejudice  wliich  would  amount  to  part  performance,will  not  be  specifically  en- 
forced in  equity.     Moote  v.  Scriven,  33  Mich.,  500. 

As  to  part  payment's  not  amounting  to  a  part  performance  so  as  to  take  the 
case  out  of  the  statute,  see  Colgrove  v.  Solomon,  34  Mich.,  494. 

454 


FOURTH  CIPtCUlT,  XOYEMBER,  1844.  503 

Weed  V.  Terry. 

tlie  register's  office,  in  book  ''  M.,"  ])age  119;  but  tlic  levy  and 
sale  were  made  of  the  lots  lirst  described,  and  there  is  no  plat  of 
any  part  of  said  village  recorded  in  said  book  M.,  except  at  page 
1!)1),  the  ])lace  iirst  mentioned.  That,  on  March  30th,  1S42,  the 
redemption  having  expired,  the  sheriff  executed  a  deed  of  the 
lands  to  complainants;  and  that  all  the  lots  were  occu])ied  as 
one  pai'cel.  That  Robert  Le  Ro}^  and  wife  executed  a  deed  of 
the  same  premises  to  the  defendant  Teriy,  in  March,  IS-iO,  after 
the  levy,  and  before  the  sale  to  complainants;  and  said  Le  R03' 
and  Terry  are  charged  with  notice  of  the  levy  at  the  time  said 
deed  M'as  executed ;  and  that  the  makers  and  acceptors  of  said  bill 
were  and  are  bankrujits,  and  wholly  insolvent.  That  Terry,  in 
the  summer  of  1840,  made  proposals  to  complainants,  through 
II.  C.  Knight,  their  attorney,  for  an  amicable  arrangement  of 
their  claims  to  said  premises,  by  an  appraisal  and  division  in 
jn-oportion  to  their  respective  demands  on  LeRoy, — he  stating 
his  claim  at  about  $1,100, — which  proposition  was  afterwards 
agreed  to  by  complainants,  and  such  acquiescence  made 
known  to  Terry,  wdio  still  adhered  to  the  proposition.  That, 
after  long  delay,  about  March  1st,  1842,  Terry  agreed  with 
Knight  upon  AYillard  McConnell  to  appraise  and  divide 
said  property,  in  pursuance  of  said  agreement, 
'■'and  that  lots  11  and  12  fell  to  the  share  of  complain-  [*503] 
ants,  and  13,  34,  35  and  36  to  Terry;  and  that  both 
parties  went  into  possession  of  their  respective  parcels,  and 
ever  since  complainants  have  continued  in  possession  of  lots 
11  and  12,  and  exercised  all  acts  of  ownership  over  them. 
That,  about  April  1st,  1842,  in  pursuance  of  the  agreement  by 
which  each  party  was  to  cpiit-claim  to  the  other  their  respective 
lots,  arpiit-claim  deed  of  lots  13,  34,  35  and  3H,  from  complain- 
ants to  Terry,  was  drawn  u])  by  said  Knight,  and  sent  to  ]^ew 
York,  from  whence  it  was  returned  duly  executed,  to  be  de- 
livered by  said  Knight  to  Terry,  on  receiving  from  the  latter  a 
(juit-claini  deed  of  lots  11  and  12,  and  was  tendered  to  Tei'ry  on 
or  about  the  hrst  of  June,  1842,  when  he  refused  to  complete 
such  agreement.  That,  soon  after  that  deed  was  forwarded  to 
Kew  York,  a  quit-claim  deed  for  the  other  lots  was  drawn' up 

455 


501  •  CASES  IN  CIIAXCEIIY. 

Weed  V.  Terry. 

by  Knight,  at  Terry's  request,  wliicli  he  promised  to  execute, 
with  liis  wife,  when  Mr.  Whittemore,  Matli  whom  he  desired  it 
should  be  left,  would  call  at  his  house  for  that  purpose;  and 
afterwards,  in  AVhittemore's  presence,  refused,  saying  he  had 
been  advised  not  to  execute  it.  Prays  for  specific  performance, 
injunction,  &c. 

The  answer  denies  that  the  levy  was  made  on  the  lots  in  con- 
troversy, and  avers  that,  it  appears  by  the  return,  it  was  made 
upon  lands  described  otherwise,  and  that  the  sheriff  gave  notice 
of  the  sale  of  the  premises,  only,  described  in  his  return. 
Admits  the  sale  of  the  lots  described  in  the  bill,  and  that  com- 
plainants were  the  purchasers;  and  the  giving  of  the  certificate. 
Denies  that  said  lots  were  in  one  parcel,  but  asserts  that  a  road 
ran  between  the  two  parcels,  as  proposed  to  be  divided.  Ad- 
mits the  deed  from  Le  Roy,  and  states  the  consideration  at 
$1,400,  but  denies  notice  of  the  levy  at  that  time.     Denies 

that  he  made  the  proposition  to  divide  the  land  to 
[*504:]  Knight,  and  *avers  it  came  from  Knight  to  him,  and 

that  he  was  induced  to  accede  to  it,  by  the  fraudulent 
representations  of  Knight  that  the  proceedings  under  the  exe- 
cution were  regular  and  valid.  Says  that,  after  the  time  of 
redemption  had  expired.  Knight  again  saw  him  and  informed 
him  the  title  had  become  absolute,  but  that  he  was  still  willing 
to  have  the  land  divided,  whereupon  they  agreed  upon  Mc- 
Connell,  and  the  appraisal  took  place.  Says  that  the  agreement 
was  not  reduced  to  writing,  and  insists  on  the  statute  of  frauds. 
Denies  he  put,  or  agreed  to  put,  complainants  in  possession, 
but  says  Knight  took  possession  without  defendant's  consent, 
and  while  he  was  absent  from  the  State;  and  that,  when  he 
returned,  he  threatened  to  commence  legal  proceedings,  but 
was  induced  by  Knight  to  desist,  he  promising  to  institute  pro- 
ceedings in  chancery  to  settle  the  title,  and  to  account  for  the 
rents  and  profits.  Admits  Knight  prepared  a  quit-claim  deed 
for  him  to  execute,  and  that  he  agreed  to  execute  the  same,  but 
avers  that  he  was  deceived  by  fraudulent  ]-epresentations,  and 
insists  on  the  statute  of  frauds.  Admits  ofier  of  quit-claim 
deed  from  complainants. 

456 


FOURTH  ClllCUlT,  XOVEMBEK,  1844.  505 


Weed  V.  TeiTy. 


A  replication  was  filed,  and  proofs  were  taken;  but  it  is  un- 
necessary to  set  forth  the  evidence,  as  the  facts  sufficiently  ap- 
pear in  the  opinion  of  the  Court. 

0.  D.  Richardson  <&  II.  C.  Knight.,  for  complainants. 

G.  W.   Wisner  <&  Win.  Drape7',  for  defendant. 

TuE  CnANCELLOK.  It  is  not  necessary  to  decide  whether 
complainants,  or  defendant,  would  have  succeeded  at  law  in 
making  a  good  title  to  the  lots.  Neither  party  was  exactly 
satisfied  as  to  the  title.  Both  claimed  the  lots; — complainants 
under  the  levy  and  sheriff's  deed  to  them,  and  defend- 
ant under  his  deed  from  Le  Roy; — and  '--they  finally  ["^505] 
agreed  to  compromise  the  nuitter  by  dividing  them  be- 
tween them,  in  proportion  to  their  respective  claims  against 
Le  Koy,  and  McConnell  was  agreed  upon  to  make  the  division. 
The  doubt  hanging  over  the  title  was  a  sufficient  consideration 

for   this   agreement.     Attwood   v.    ,  1    Russ.    R.   353. 

And,  if  there  was  nothing  unfair  on  the  part  of  complainants 
in  bringing  it  about, — no  advantage  taken  of  defendant, — and 
there  has  been  a  part  performance  of  it  to  take  it  out  of  the 
statute  of  frauds,  a  specific  performance  should  be  decreed. 

The  delivery  of  possession  under  an  agreement  is  an  act  of 
])art  performance.  Willis  v.  Stradling.,  3  Yes.  R.  378 ;  Board- 
man  \.2Iodijn,  6  Ves.  R.  467;  Boioers  v.  Cator,  4  Yes.  R. 
91;  Gregory  v.  Mighell,  18  Yes.  R.  328;  1  Sugd.  on  Yend. 
llC),  and  cases  there  cited. 

The  agreement,  and  the  division  of  the  lots  by  McConnell, 
who  awarded  numbers  11  and  12  to  complainants  and  the 
others  to  defendant,  are  admitted;  but  defendant  denies  deliv- 
ering possession  of  them  to  complainants,  or  to  Knight,  their 
agent.  The  only  eft'ect  of  this  denial  is  to  drive  complainants 
to  proof  of  the  fact; — the  answer  not  being  evidence,  though 
under  oath,  as  an  answer  under  oath  is  waived  by  the  bill. 
Kiught,  who  is  complainants'  princi])al  witness,  and  who  acted 
as  their  agent  in  niaking  the  agreement,  and  was  one  of  their 
attorneys  in  obtaining  the  judgment  against  Le  Roy,  states  in 

457 


506  CASES  IN  CIIAXCERY. 

Weed  r.  Terry. 

liis  testimony  that  Terry  said,  after  the  division  was  made  by 
McConnell,  that  it  was  fair,  and  he  was  satisfied  witli  it;  and 
that  it  Avas  then  agreed,  deed  should  be  executed  by  tlie  parties 
to  each  other,  and  that,  in  the  meantime,  they  should  take  pos- 
session of  their  respective  portions.  That  Hunt,  as  tenant  to 
Teny,  was  then  in  possession  of  all  the  lots ;  and,  as  the  year 

for  w*hich  they  had  been  let  to  him  would  expire  in  a 
[*506]  few  days,  Terry  was  to  receive  the  rent;  that  *Kniglit,  as 

agent,  agreed  to  let  lots  11  and  12  to  Hunt  for  another 
year,  at  $100  rent,  if  Hunt  did  not  remove  upon  a  farm  he 
owned;  and  that  Hunt,  under  this  agreement,  occupied  the 
premises  about  a  fortnight  after  his  lease  from  Terry  expired, 
wdien  he  went  to  reside  on  his  farm,  and  the  premises  were  let 
by  Knight  to  a  Mr.  Miles.  Knight's  testimony  does  not  stand 
alone  with  regard  to  the  possession.  It  is  supported  by  facts 
and  circumstances,  testified  to  by  McConnell  and  Hunt.  Mc- 
Connell says,  Terry  expressed  a  willingness  at  the  time,  (when 
the  lots  were  divided,)  to  give  possession  of  the  house  and  two 
lots.  Again,  "  I  think  it  was  agreed  that  each  party  should,  at 
the  time,  go  into  possession."  Hunt  says,  "Terry  did  not  ap- 
pear to  hav-e  anything  further  to  do  with  the  house;  and  Mr. 
Knight  took  upon  himself  the  control,  without  any  objection, 
to  the  knowledge  of  deponent,  from  Mr.  Teny."  If  Terry  had 
not  given  up  the  possession  to  complainants,  how  happened  it 
he  did  not  call  upon  Hunt,  to  know  wdiether  he  wanted  the 
premises  another  year;  or  for  rent  the  fortnight  he  continued 
in  possession  after  his  year  had  expired?  Or  tliat  he  did  not 
rent  the  premises  to  some  other  tenants?  Was  he  ignorant  that 
Kniglit,  as  complainants'  agent,  was  acting  the  landlord  in  let- 
ting the  house,  making  repairs,  and  the  like?  He  says  Knight 
took  possession  when  he  was  absent,  and  without  the  State. 
But  he  does  not  state  the  time,  nor  has  he  adduced  any  proof 
of  the  fact. 

Terry  was  not  taken  by  surprise  when  he  entered  into  the 
ao-reement.  The  first  conversation  between  him  and  Knight 
on  the  subject,  was  in  the  summer  of  1840,  and  the  division 
was  not  made  until  March,  1842.     After  the  deed  to  complain- 

458 


FOIJPtTH  CIRCUIT,  NOVEMBER,  1844.  507 

Jacox  V.  Clark. 

jants  for  the  two  lots  had  been  drawn,  and  Kniglit  and  Whitte- 
uiore  had  called  with  it  at  his  house,  to  have  it  executed 
by  him  and  his  wife,  and  found  *him  absent  from  liome;  [*507] 
on  beina^  informed  of  it,  he  promised  to  execute  the  deed 
whenever  Whittemore  would  call  again  for  the  pur])Ose.  Tiiat 
he  was  deceived  all  this  time  in  supposing  the  proceedings  on 
the  execution  were  regular,  and  that  there  was  no  question  as 
to  complainants'  title,  is  incredible,  and  contradicted  bj  the 
testimony  in  the  case.  Could  he  have  thought  Knight  wished 
to  give  him  his  clients'  property?  In  a  conversation  between 
him  and  Knight,  Charles  Terry,  his  own  witness,  says  he  heard 
liim  say  the  sheriff's  sale  was  not  good;  Whittemore  testifies 
to  about  the  same  thing,  in  one  or  more  conversations  he  heard 
between  them,  and,  moreover,  that  Terry  advised  with  him  as 
to  what  he  had  better  do. 

A  decree  must  be  entered  that  defendant  execute,  acknowl- 
edge, and  deliver  to  complainants,  a  quit-claim  deed  of  lots  11 
and  12,  with  a  covenant  against  his  own  acts,  and  procure  his 
wife  to  join  therein  or  release  lier  right  of  dower,  on  receiving 
a  like  deed,  executed  and  acknowledged  by  complainants,  for  the 
other  lots.  And  defendant  must  pay  to  complainants  their 
costs. 


*Li»us  Jacox  v.  Nelson  W.  Clark.^      [*o08] 

Where  defendant  received  a  grant  of  the  right  to  use  certain  water  power, 
and  dig  a  race  on  complainant's  land,  in  consideration  of  erecting  a  mill 
at  a  certain  place  where  their  lands  joined,  and  then  built  his  mill  at  an- 
other place,  and  diverted  the  water  from  complainant's  land,  it  teas  held, 
that  the  consideration  had  failed,  and  the  complainant  was  entitled  to  a 
reconveyance;  and  defendant  was  enjoined  from  setting  up  his  deed  in 
defense  of  any  action  for  a  previous  diversion  of  the  water. 

1  S.  C,  ante,  249. 

4.59 


509  CASES  IX  CHANCERY. 

Jacox  r.  Clark. 

This  was  a  bill  to  restrain  defendant  from  diverting  water 
from  complainant's  land;  and  for  specific  performance  of  an 
agreement,  or  a  reconveyance  of  certain  privileges. 

The  complainant,  in  1835,  holding  a  certain  tract  of  land  as 
tenant  by  the  courtesy,  which  was  in  two  places  crossed  by  a 
creek,  on  which,  at  that  place,  there  was  a  descent  and  water 
sufficient  for  propelling  machinery,  purchased  an  adjacent  tract, 
by  which  he  became  possessed  of  all  of  the  stream  between  the 
points  of  intersection  with  his  boundary  lines.  The  stream, 
before  entering  his  land,  passed  throagh  a  lake,  contiiining  about 
forty  acres,  and  thence  through  a  lot  subsequently  purchased 
by  defendant,  immediately  to  the  north  of  complainant.  On  Feb- 
ruary 10th,  1843,  defendant,  alleging  that  he  owned  the  lands 
on  the  stream  above  complainant's  lot,  proposed  to  complain- 
ant, if  he  would  grant  him  the  premises  hereinafter  described, 
to  improve  the  water  privilege  such  grant  would  give  him,  con- 
nected with  his  own  premises,  by  erecting  thereon  a  building 
with  machinery  for  an  oil  mill,  or  for  manutacturing  wool,  or 
both;  complainant's  permission  being  necessary  to  enable  him 
to  do  so.  Complainant,  in  consideration  thereof,  and  for  the  nom- 
inal consideration  of  one  dollar,  thereupon  duly  conveyed  to 
him  the  following  right,  viz.  "  The  right  of  cutting  or  digging  a 
ditch,  commencing  at  any  point  the  said  Clark  shall  elect 
[*509]  %n  the  north  line  of  the  farm  now  owned  and  occupied 
by  said  Jacox,  situated  on  sections  twenty  and  twenty- 
nine,  in  said  town,  county,  and  State,  and  running  to  the  creek, 
[the  stream  before  mentioned,]  and  the  right  of  settling  the 
l)ed  of  the  creek,  [on  the  lands  of  Jacox,]  down  as  low  as  the 
said  Clark  may  choose,  for  the  purpose  of  drawing  the  water 
from  a  water  wheel,  which  the  said  Clark  intends  to  erect,  for 
the  purpose  of  manufacturing  linseed  oil,  and  also  for  the  pur- 
pose ()f  manufacturing  wool  into  rolls  or  cloth;  provided,  that 
said  Clark  keeps  the  said  ditch  open  and  clear,  so  that  the 
water  may  have  a  free  passing  oif;  and  provided  that  said 
Clark  shall  not  dig  more  than  one  ditch." 

After  obtaining  this  deed,  Clark  gave  up  the  intention  of 
erecting  liis  mill  where  he  had  agreed  with  Jacox  to  build  it, 

460 


FOURTH  CIRCUIT,  XOYEMBER,  1844.         510 

Jacox  V.  Clark. 

and  proceeded  to  dig  a  race  leading  directly  from  the  lake 
throiig-h  which  the  before  mentioned  stream  flowed,,toa  princi- 
j)al  branch  of  Clinton  river,  into  which  branch  the  stream 
emptied.  He  also  went  on  to  build  a  dam  where  the  stream 
left  the  lake,  in  such  a  manner  that  the  water  was  diverted  from 
it,  and  passed  through  the  race  into  the  main  branch;  in  this 
way  cutting  off  the  water  ])ower  from  Jacox's  land. 

Complainant  sought  an  injunction  against  the  diversion  of 
the  water,  and  prayed  defendant  might  be  compelled  to  build 
his  mill  according  to  agreement,  or  else  l)e  decreed  to  reconvey 
to  complainant  the  privilege  granted  by  the  deed  of  February 
10th,  1843. 

J/.  L.  Drake  and  T.  J.  Dral'e,  for  complainant. 

G.  W.  Wisner,  for  defendant. 

The  Chancellor.  The  consideration  of  the  right  to 
use  the  water,  and  to  dig  a  race  on  complainant's  land,*was  [*510] 
the  erection  of  the  mill  on  that  part  of  defendant's  land 
lying  immediately  north  of  complainant's.  But  defendant  has 
built  the  mill  on  other  lands  belonging  to  him;  and  takes  the 
water  directly  from  the  lake,  instead  of  the  creek  forming  the 
outlet  of  the  lake,  and,  after  using  it,  carries  it  by  a  race  into  a 
branch  of  the  Clinton  river,  instead  of  i-eturning  it  into  the 
V)ed  of  the  creek  on  complainant's  land.  No  such  right  as  this 
is  given  by  the  deed.  On  the  contrary,  it  is  inconsistent  with, 
and  hostile  to  the  rio-ht  o-ranted.  The  two  cannot  exist  and  be 
in  operation  at  the  same  time,  without  impairing  each  other. 
C'omplainant  had  a  right  to  have  the  water  of  the  lake  flow 
across  his  land  in  its  natural  course;  and,  as  incident  to  it,  to 
allow  a  diversion  of  the  water  on  such  terms  and  conditit>ns  as 
he  thought  proper.  It  is  not  for  this  Court,  or  the  defendant, 
to  impose  the  terms,  or  to  say  the  present  location  of  the  mill 
is  as  advantageous  to  him  and  his  property,  as  the  one  indicated 
in  the  grant,  and  had  in  view  by  the  ])arties  when  the  deed  was 
executed.     I  am  therefore  of  the  opinion,  as   the  consitleration 

461 


511  CASES  m  CHAIs^CERY. 

Chene  v.  Bank  of  Michigan. 

of  the  grant  has  wholly  failed,  complainant  is  entitled  to  a  re- 
conveyance of  all  rights  granted  by  the  deed  of  February  10th, 
1843,  and  to  his  costs.  Quick  v.  Stuyvesant^  2  Paige  R.  84. 
Defendant  must  also  be  enjoined  from  setting  up  the  deed  of 
February  10th  as  a  defense,  at  law,  to  any  action  that  may  be 
brought  against  him  for  having  heretofore  diverted  the  water. 

Note.     The  injunction  granted  on  filling  the  bill  had  been  dissolved,  on 
the  coming  in  of  the  answer.     See  same  case,  ante,  249. 


['''511]  *ToussAiNT  Chene  et  al.  v.  The  Peesidext, 
Directors  and  Company  of  the  Bank  of 
Michigan. 

Under  the  act  of  Congress  of  March  3d,  1807,  entitled,  "  An  act  regulating 
the  grants  of  land  in  the  Territory  of  Michigan,"  ■which  provides,  that 
the  fee  simple  of  every  tract  or  parcel  of  land  that  was  settled,  occupied 
and  improved,  prior  to  the  first  day  of  July,  1796,  should  be  granted  to 
the  person  or  persons  in  the  actual  possession,  occupancy,  and  improve- 
ment thereof; — it  was  held,  that  the  act  recognized  no  right  in  .claimants 
but  that  of  occupancy  or  possession,  as  the  stock  in  which  the  fee  was  to 
be  ingrafted;  and  that  where  three  brothers,  on  the  deatji  of  their  father, 
claimed  a  tract  of  land  under  a  '"  substitution,"  or  a  kind  of  entailment, 
by  which  the  land  belonged  to  the  eldest  son  his  lifetime,  and  after  his 
death  to  the  second  son  his  lifetime,  &c.,  the  eldest  son,  under  the  claim 
set  up  by  the  brothers,  being  entitled  to  the  occupancy  or  possession  in  his 
own  right,  to  the  exclusion  of  his  brothers,  was  also  entitled  to  the  fee 
simple  in  his  own  right,  under  the  act  of  Congress;  and  that,  having 
presented  his  claim,  and  procured  its  allowance,  and  obtained  a  patent  foi 
the  land,  there  was  not  a  resulting  trust  in  favor  of  his  brothers. 

About  tlie  year  1802,  one  Charles  Chene,  a  resident  of  De- 
troit, died  in  possession  of  a  farm  constituting  the  front  of 
what  is  now  knov.-n  as  the  De  Garmo  Jones  farm,  west  of  the 
city.     He  left  three  sons, — Pierre,  the  eldest,  Toussaint,  the 

462 


FIRST  CIECUIT,  NOVEMBER,  1S44.  512 


Chene  v.  Bank  of  Michi'^an 


second,  and  Gabriel, — and  one  daughter.  Pierre  continued  in 
possession  of  tlie  farm  after  his  lather's  death,  and,  some  three 
or  four  years  after,  purcliased  a  farm  above  the  city,  now  known 
as  the  "•  Chene  fai-m,"  of  one  Joseph  Serre,  surnamed  St.  Jean, 
and  took  a  conveyance  of  it  in  his  own  name.  About  the  same 
time,  the  three  sons  conveyed  all  their  interest  in  the  De  Garmo 
Jones  farm  to  one  Antoine  La  Selle.  Tonssaint  went  into  pos- 
session of  the  St.  Jean  farm,  and  cultivated  the  same  for  two 
years,  dividing  the  produce  with  Pierre;  M'hen,  in  consequence 
of  some  misunderstanding  between  them,  a  fence  was  run 
through  the  farm,  dividing  it  into  two  parts;  and  Tons- 
saint  continued  to  occupy  and  cultivate  the  ^northeast  [*512] 
half,  and  Pierre  took  possession  of,  and  cultivated  the 
other  half.  The  fee  of  both  the  De  Garmo  Jones  farm  and  the 
St.  Jean  farm  was  in  the  government. 

By  an  act  of  Congress,  entitled  "  An  act  regulating  the  grants 
of  land  in  the  Territory  of  Michigan,"  approved  March  3d, 
1807,  it  was  provided  that  the  fee  simple  of  any  tract  or  parcel 
of  land,  that  was  settled,  occupied  and  improved,  prior  to  the 
tirst  day  of  «Tuly,  1796,  should  be  granted  to  the  person  or  per- 
sons in  the  actual  possession,  occupancy  and  improvement 
thereof;  and  commissioners  were  appointed  for  the  purpose  of 
ascertaining  and  deciding  on  the  rights  of  persons  claiming  the 
benefit  of  the  act.  Pierre  presented  a  claim  for  the  whole  of 
the  St.  Jean  farm,  to  the  commissioners,  for  confirmation,  by 
whom  his  claim  was  allowed;  and  he  obtained  a  patent  for  the 
land  in  1811.  In  August,  1818,  Pierre  sold  the  half  of  the 
farm  in  possession  of  Tonssaint  to  one  Godfroy,  who  subse- 
quently sold  it  to  the  defendants.  Tonssaint  died  in  posses- 
sion of  the  premises  in  ISo-l.  and,  soon  after  his  death,  nu 
action  of  ejectment  was  brought  by  defendants,  in  which  they 
recovered  a  verdict;  M'hen  complainants  filed  their  bill  to  re- 
strain further  proceedings  at  law,  and  claiming  a  i-esnlting 
trust  in  their  favor,  under  the  deed  from  St.  Jean  to  Pierre 
Chene. 

It  is  unnecessary  to  make  a  more  full  statement  of  the  case. 


403 


513  CASES  m  CIIANCERr. 

Chene  v.  Bank  of  Michigan. 

as  the  remaining  facts  are  sufficiently  set  forth  in  tlie  opinion 
of  the  Court. 

A.  W.  J3uel,  for  complainants,  contended  that  the  St.  Jean 
farm  was  purchased  out  of  the  proceeds  of  the  Jones  farm; 
and,  the  deeddiaving  been  taken  in  Pierre's  name,  there  was  a 
resulting  trust  in  favor  of  Toussaint  and  Gabriel.  That  Pierre 
wrongfully  obtained  the  patent  in  his  own  name. 

["513]  ^G.  E.  Hand,  for  defendants,  insisted  there  was  no 
resulting  trust  growing  out  of  the  sale  of  the  Jones  farm, 
and  purchase  of  the  St.  Jean  farm ;  that  the  grant  from  gov- 
ernment was  a  mere  gratuity;  and  that  the  action  of  the  com- 
missioners was  conclusive  in  the  matter. 

The  Chancellor.  The  act  of  Congress,  under  which  the 
St.  Jean  farm  was  confirmed  to  Pierre  Chene,  makes  the  right 
of  occupancy,  or  possession,  the  basis  of  confirmation.  It  pro- 
vides that,  to  every  person  or  persons  in  the  actual  possession, 
occupancy,  and  improvement  of  any  tract  or  parcel  of  land,  in 
his,  her,  or  their  own  riglit,  at  the  time  of  passing  the  act,  and 
which  tract  or  parcel  of  land  was  settled,  occupied,  and  im- 
proved, l)y  him,  her,  or  them,  prior  to  and  on  the  first  day  of 
July,  1796,  or  by  some  other  person  or  persons,  under  whom 
he,  she,  or  they,  hold  or  claim  the  right  to  the  occupancy  or 
possession  thereof,  and  which  occupancy  or  possession  has  been 
continued  to  the  time  of  passing  the  act,  the  tract  or  parcel  of 
land,  thus  possessed,  occupied,  and  improved,  shall  be  granted, 
and  such  occupant  or  occupants  shall  be  confirmed  in  the  title 
to  the  same,  as  an  estate  of  inheritance  in  fee  simple.  Act  of 
March  3d,  1807,  Sec.  2. 

Possession  or  occupancy  was  a  good  title  against  all  the 
world,  except  the  government,  which  held  the  fee  simple. 
Government  recognized  this  right  of  possession,  and  made  it 
the  consideration  of  granting  the  fee.  And,  if  Pierre  Chene, 
when  he  obtained  a  confirmation  to  himself  of  the  St.  Jean 
farm,  held  the  occupancy  or  possession  of  the  wlu ''e,  or  any 
part  of  it,  under  the  deed  from  St.  Jean,  in  trust  for  his  broth 
464 


FIEST  CIRCUIT,  NOVEMBER,  1S44.  5U 

Chene  v.  Bank  of  Michigan. 

ers  Toussaint  and  Gabriel,  lie,  in  equity,  continued  t(  iiold  the 
title  in  trust  for  them  after  the  confirmation.  For  no  princi- 
ple is  better  settled,  than  that  a  trustee  shall  not  be 
allowed  to  make  any  advanta<:^e  to  *himself  from  an  [*514] 
abuse  of  his  trust.  The  law  will  not  even  allow  .him  to 
renew  a  lease  for  his  own  benefit,  where  the  lessor  has  refused 
to  renew  it  foi*  the  benefit  of  the  cestui  que  trust.  Keech  v. 
Sandford,  3  Eq.  Ca.  Ab.  741. 

There  is  nothing  in  the  act  of  Congress,  under  which  the 
title  was  confirmed  to  Piei-re  Chene,  to  prevent  the  opera- 
tion of  this  equitable  principle.  Great  injustice  might  be  done 
if  courts  of  equity  were  precluded  from  the  exercise  of  their 
ordinary  jurisdiction  in  such  a  case;  and  the  act  of  Congress 
itself  be  made  the  means  of  vesting  a  title  in  a  person  for 
whom  it  was  not  intended. 

It  is  not  rejudging  what  the  commissioners  have  done,  as  in 
the  case  of  adverse  claimants.  If  Pierre  held  the  right  of  pos- 
session under  the  deed  from  St.  Jean,  in  trust  for  Toussaint 
and  Gabriel,  his  possessory  title  was  their  title;  and  a  confir- 
mation of  such  title,  by  the  commissioners,  a  confirmation  of 
their  title.  The  two  were  consistent;  and  not  inconsistent,  as 
is  the  case  with  adverse  titles,  which,  being  inconsistent,  de- 
stroy each  other. 

Nor  is  there  anything  in  the  nature  of  the  conveyance  from 
the  government,  it  being  a  patent,  to  shut  out  the  inquiry. 
Equity  does  not  question  the  legal  title  in  such  cases,  but  lays 
hold  of  it  for  the  cestui  que  trust.,  to  prevent  injustice.  It  is 
a  well  settled  principle  of  law,  that,  where  a  deed  is  taken  in 
the  name  of  A.,  and  the  consideration  is  paid  by  B.,  a  trust  re- 
sults in  favor  of  the  latter.  Su])po5e  the  grantor  to  be  the 
government,  will  that  alter  the  case?  Certainly  not;  for  it  is 
immaterial  who  the  grantor  is,  whether  he  be  an  individual  or 
the  government,  and  whether  the  conveyance  be  a  patent  or 
the  deed  in  common  use. 

This  brings  us  to  the  question  whether  there  was  a  resulting 
trust  in  favor   of  Toussaint   and   Gabriel,  as  to    the   posses- 

YoL.  I.— 30  465 


515  CASES  IK  CHANCERY. 

Chene  v.  Bank  of  Michigan. 

[*515]  sion  under  the  deed  from  St,  Jean  to  Pierre  Cliene.    *0n 

tliis  complainants  rest  tlieir  claim  to  the  premises  in 
question. 

The  bill  states  that  Charles  Chene,  the  father  of  the  three 
brothers,  died  about  the  year  1806,  in  possession  of,  and  having 
a  certain  equitable  title  to  the  front  part  of  what  is  now  called 
the  De  Garmo  Jones  farm,  and  that,  ujpon  his  decease,  such 
title  passed  and  belonged  to  his  male  children,  the  said  Pierre, 
Toiissaint,  and  Gabriel.  By  a  certain  equitable  title,  is  meant 
the  possession  or  occupancy  of  the  land.  But  how,  or  in  what 
way,  this  title,  on  the  death  of  Charles  Chene,  passed  and 
belonged  to  his  male  children,  the  bill  does  not  state,  but  leaves 
us  in  the  dark.  It  is  certain,  however,  the  brothers,  after  their 
father's  death,  did  not  claim  the  Jones  farm  by  descent  ;  for 
they  had  a  sister  then  living,  and,  by  the  ordinance  of  1787 
she  would  have  been  entitled  to  an  equal  share  with  them,  as 
tenants  in  common  ;  yet,  there  is  no  mention  made  of  her 
interest,  and  she  did  not  join  in  the  deed  to  La  Selle.  More- 
over, this  deed,  signed  by  the  brothers  and  La  Selle,  shows  tlie 
Jones  farm  came  to  the  Chene  family  from  one  Tetard,  alias 
Porville;  and  that  the  brothers  claimed  it  under  ?i  substitution, 
as  it  is  called  in  the  deed,  or  kind  of  entailment.  The  part 
of  the  deed  to  which  we  refer  more  particularly,  is  in  these 
words  : 

"  And  the  said  Pierre  Chene,  Toussaint  Chene,  and  Gabriel 
Chene,  warrant  unto  the  said  Antoine  La  Selle,  his  heirs  and 
assigns  hereafter,  the  said  premises  as  aforesaid,  against  all 
gifts,  dowers,  debts,  mortgages,  evictions,  alienations,  suhstitu- 
tions,  and  of  all  hindrances,  of  aM.  incumbrances  whatsoever. 
And,  as  a  security  for  the  said  warranty,  they  mortgage  unto 
the  said  Antoine  La  Selle,  his  heirs  and  assigns  hereafter,  all 
their  present  and  forthcoming  property,  and  more  particulaaly 

the  farm  or  plantation  which  Pierre  Chene  recentW 
[■'■'516]  purchased  from  Joseph  *Serre,  surnamed  St.  Jean,  lying 

and  situate  at  the  Grand  Marais,  in  the  district  of 
Detroit,  containing  five  arpents  in  front,  by  forty  in  depth, 
together  with  the  buildings  thereon  erected.     Also  the  orchard, 

4GG 


FIEST  CIRCUIT,  XOYEMBER,  ISU.  517 

Chene  v.  Bank  of  Michij^an. 

fences,  and  dependencies  thereunto  attached.  This  additional 
guarantee  is  to  secure  the  said  Antoine  La  Selle,  his  heirs  and 
assigns  hereafter,  against  all  claims  of  the  aforesaid  Chenes, 
and  of  their  heirs  hereafter,  by  virtue  of  a  suhstltution  said  to 
have  been  made  hy  Tetard,  alias  Forville^  of  the  said  land  a.f 
above  sold,  to  the  eldest  of  the  male  children  of  the  fam.ilij  of 
the  said  3/ess.  Chene  :  and  also  against  an  annual  unredeem- 
able rent  of  two  pounds,  New  York  currency,  for  which  the 
said  lands  stands  charged.  The  said  Pierre  Chene  and  his 
said'  brothers,  declaring  by  these  jpresents  that  they  intend 
transfe7-ring  said  substitution,  and  the  said  rent  chargeable 
on  said  land  that  the  said  PieiTe  Chene  has  lately  purchased 
of  the  said  Joseph  Serve,  surnamed  St.  Jean,  situate  at 
Grand  Marais  as  above  mentioned." 

Here  then  we  have  the  substitution,  under  which  the  brothers 
claimed  the  Jones  farm,  transferred  by  them  to  the  St.  Jean 
farm,  purchased  in  the  name  of  Pierre.  We  say  purchased  in 
the  name  of  Pierre,  as  we  are  satisfied  from  tlie  evidence  the 
St.  Jean  farm  was  purcliased  with  the  proceeds  of  the  sale  of 
the  Jones  farm  to  La  Selle. 

Toussaint  never  set  up  any  other  claim  to  the  St.  Jean  farm 
than  that  growing  out  of  the  substitution.  Abraham  Fournier, 
a  brother-in-law  to  Toussaint,  wnth  whom  he  was  in  the  habit 
of  almost  daily  intercourse,  and  one  of  complainants'  witnesses, 
says,  both  before  and  after  the  sale  to  Godfroy  he  had  frequent 
conversations  with  Toussaint,  and  asked  him  why  he  did  not 
make  some  arrangement  with  Pierre,  if  he  was  entitled  to  part 
uf  the  fiirm;  otherwise  Pierre  would  sell  it  and  eat  him  up  : 
to  which  Toissaint  replied,  "  he  could  not  sell  it,  because 
the  farm  *belonged  to  the  Chene  family,  and  that  it  was  [*517] 
given  to  the  Chene  family  ft'om  father  to  son;  and  that 
it  belonged  to  Pierre  during  his  life,  and  after  that  to  Tous- 
saint, and  then  to  Gabriel." 

In  the  deed  to  La  Selle,  and  Fournier's  testimony,  we  have  ev- 
idence of  two  facts;  that  the  brothers  claimed  the  St.  Jean  farm 
under  the  substitution ;    and  that,  by  the  substitution,  Pierre 

467 


51S  CASES  IK  CHANCERY. 

Chene  v.  Bank  of  Michigan. 

Chene  had  a  life  estate,  while  the  "other  brothers  had  an  estate 
in  expectancy  only. 

That  Tonssaint  claimed  an  estate  in  expectancy,  and  not  in 
possession,  (excejDt  so  far  as  he  was  allowed  by  Pierre  to  live 
on  a  part  of  the  farm,  and  cultivate  it  for  the  benefit  of  himself 
and  family,)  is  proved  by  other  facts.  When  Charles  Chene 
died,  Pierre,  the  eldest  of  the  brothers,  was  left  in  sole  posses- 
sion of  the  Jones  farm.  Tliere  is  no  evidence  his  brothers  oc- 
cupied  or  claimed  a  joint  occupanc}^,  witli  him;  or  that  he 
ever  paid  them  rent.  Toussaint  was  at  this  time  living  on  Hog 
Island.  How  long  after  Charles  Chene's  death  it  was,  before 
the  farm  was  sold  to  La  Selle,  does  not  distinctly  appear.  Fran- 
cis La  Selle,  whose  testimony  is  entitled  to  as  much  weight,  if 
not  more,  on  that  point,  as  that  of  any  other  witness,  thinks  it 
was  four  or  five  years.  Toussaint  and  Gabriel,  no  doubt,  joined 
in  the  deed  to  La  Selle,  to. cut  off  their  expectant  estate  in  the 
Jones  farm  under  the  substitution;  and  not  on  account  of  any 
right  they  had  to  the  possession  in  Pierre's  lifetime.  And  the 
fact  of  Pierre's  having  a  life  estate  in  the  Jones  farm,  is  proba- 
bly the  reason  why  the  deed  of  the  St.  Jean  farm  was  taken  in 
his  name. 

Toussaint,  it  is  true,  took  possession  of  the  St.  Jean  farm 
soon  after  it  was  T^urchased;  but  it  was  as  tenant  to  Pien'e,  and 
not  in  his  own  right.  He  worked  the  farm,  and  divided  the 
produce  with  Pierre,  each  taking  half,  for  the  first  two 
[*518]  years,  when  there  was  a  difficulty  between  *them,  and 
the  farm  was  divided;  Toussaint  continuing  in  posses- 
sion of  one  half,  and  Pierre  taking  possession  of  the  other.  In 
the  division  of  the  two  years'  produce,  we  hear  nothing  of  Ga- 
briel.    Toussaint  divided  what  he  raised  with  Pierre  only. 

Joseph  Campau  swears  Toussaint  often  told  him  the  farm 
belonged  to  Pierre,  his  brother. 

From  the  testimony,  which  is  too  voluminous  to  go  more  into 
the  detail,  we  have  come  to  the  following  conclusions: 

First.  That  the  three  brothers,  after  their  father's  death, 
claimed  the  Jones  farm  under  the  substitution  from  Forville. 

468 


FIRST  CIECUIT,  DECEMBER,  ISU.  519 

Benhard  v.  Darrow. 

Seeond.  That,  by  the  substitution,  Pierre,  wlio  was  the  eldest 
brother,  was  entitled  to  the  tarui  during  his  lifetime. 

Third.  That  the  substitution  was  intended  to  be  transferred 
from  the  Jones  farm  to  the  St.  Jean  farm;  and, 

Fourth.  That  Pierre  Chene  allowed  Toussaint  to  occupy  and 
cultivate  one  half  of  the  St.  Jean  form,  as  a  matter  of  favor, 
and  by  way  of  assisting  him  and  his  family,  and  not  as  a  mat- 
ter of  right. 

Pierre,  according  to  the  claim  of  the  three  brothers,  being  in 
Lis  own  right  entitled  to  the  possession,  first  of  the  Jones  farm, 
and  afterwards  of  the  St.  Jean  farm,  during  liis  lifetime,  was  in 
his  own  right  entitled  to  the  fee  simple  under  the  act  of  Con- 
gress, which  recognized  no  right  but  that  of  possession  or  occu- 
pancy, as  the  stock  in  which  the  fee  was  to  be  ingrafted. 

If  we  are  wronc:  in  this,  and  he  could  not  rii^htfullv  take  anv 
greater  estate  than  he  previously  claimed,  and  that  was  an 
estate  tail,  (for  it  does  not  appear  what  this  substitution  was, 
unless  it  was  an  estate  tail,)  the  entailment  was  cut  off  by  the 
act  of  March  2d,  1821,  abolishing  entails,  and  vesting  allodial 
estates  in  the  tenants  in  tail.     Laws  of  1833,  p.  278. 

*Other  questions  were  raised  and  discussed  which  it  p519] 
is  unnecessary  to  decide,  after  having  given  an  opinion 
upon  the  above  points. 

Bill  dismissed,  with  costs. 


James  Benhard  et  al.  v.  Francis  Darrow  et  al. 

When  a  person  not  a  party  to  the  suit,  has  come  into  possession  of  mortgaged 
premises  since  its  commencement,  and  refuses  to  deliver  up  possession  to 
the  purchaser,  on  production  of  the  Master's  deed  and  a  certified  copy  of 
the  order  confirming  the  sale,  a  writ  of  assistance  will  not  be  gi-anted, 
unless  notice  of  the  motion,  with  the  affidavit  on  which  it  is  founded,  is 
served  upon  him. ' 

'  See  Hart  v.  Linsday  ante,  144;  Baker  v.  Pierson  5  Mich.,  456.    See,  gener- 
ally, as  to  when  it  is  proper,  Ramsdell  r.  Maxwell,  32  Mich.  285, 

469 


520  CASES  m  CHAKCEPvY. 

Gilkey  v.  Paige. 

Motion  for  a  writ  of  assistance  to  put  one  of  complainants 
in  i^ossession  of  mortgaged  premises  pnrcliased  by  liim  at  the 
Master's  sale.  It  appeared  from  tlie  affidavits  on  wliich  the 
motion  was  founded,  that  one  Parks,  who  was  not  a  party  to 
the  suit,  was  in  possession  of  a  part  of  the  premises ;  that  he 
had  but  recently  taken  possession  under  one  of  defendants; 
and  that  he  refused  to  deliver  possession  to  the  purchaser,  on 
being  shown  the  Master's  deed,  and  a  certified  copy  of  the 
order  confirming  the  sale. 

X.  Allen,  in  support  of  the  motion. 

The  Chancellok.  Parks,  not  being  a  party  to  the  suit, 
should  have  been  served  with  notice  of  the  motion.  Where  a 
party  to  the  suit  is  in  possession,  the  motion  is  ex  parte/  but 
one  in  possession  not  a  party  to  the  suit,  is  entitled  to  notice 
of  the  motion,  and  to  be  heard  on  it,  so  far  as  the  granting  of 
it  may  affect  his  rights. 

Let  an  order  be  entered  requiring  Parks  to  show  cause 
against  the  motion,  on  being  served  with  copies  of  the  affi- 
davits, &c. 


[^520]  *GiLKEY  V.  Paige. 

When  a  defendant,  who  might,  by  demurrer  or  plea  to  the  whole  bill,  have 
protected  himself  against  a  particular  discovery,  submits  to  answer  the 
whole  bill,  he  must  answer  as  fully  as  in  any  other  case. 

When  irrelevancy  is  made  a  ground  for  refusing  to  answer  a  particular  ques- 
tion, or  part  of  a  bill,  it  should  appear  that  an  answer  to  such  part  would, 
in  no  aspect  of  complainant's  case,  as  made  by  the  bill,  be  of  service  to 
him. 

Exceptions  to  Master's   report,  disallowing  exceptions  to 
answer. 

470 


FIRST  CmCUIT,  FEBRUARY,  1845.  521 

Gilke}^  r.  Paig(;. 

D.  Stuart,  for  complainant. 

E.  C.  Seaman,  for  defendant. 

The  Chancellor.  The  rule  that,  if  a  defendant  submits  to 
answ'er  a  bill,  he  is  bound  to  answer  it  full}',  when  understood 
to  mean  he  must  answer  every  particular  charge  or  allegation 
in  the  bill,  notwithstanding  tliei'e  may  be  particular  objections 
to  answering  such  charge  or  allegation,  not  applicable  to  the 
whole  bill, — has  many  exceptions;  as  where  an  answer  to  such 
charge  or  allegation  would  subject  defendant  to  a  penalty  or 
forfeiture,  or  would  criminate  him,  or  would  be  immaterial  to 
complainant's  case,  or  would  require  him  to  disclose  some  fact 
which  he  is  not  bound  by  law  to  disclose.  But  when  the  rule 
is  understood  in  its  more  restricted  and  correct  sense,  it  means 
that  when  a  defendant,  who  might,  by  demurrer  or  plea  to  the 
whole  bill,  have  protected  himself  against  a  particular  discov- 
ery, submits  to  answer  the  whole  bill,  he  thereby  waives  a  right, 
having  its  origin  in  the  rules  of  pleading,  and  which  is  incident 
to  a  particular  mode  of  defense;  and  must  answer  as  fully  as  in 
any  other  case. 

*Mr.  Wigram  says,  "  The  proper  explanation  of  the  [*521] 
rule  is — that,  if  a  defendant  who  might  have  defended 
himself  by  demurrer,  or  plea — and  thereby  escaped  from  the 
necessity  of  answering  all,  or  part  of  the  bill — has  waived  those 
modes  of  defense,  ii\\(\.  elected  to  make  his  defense  by  ansM'er — 
ho  cannot  urge  the  demurrable  character  of  the  bill  only — or 
that  a  plea  might  have  been  sucessfully  pleaded  to  it  onlij — as 
a  reason  for  not  answering*j9ar^iVMfe/' questions.  The  submis- 
sion to  answer  concludes  him  as  to  that — Ijut  no  further.  The 
rule  decides  only  that  an  answer  which  is  the  result  of  choice, 
is  subject  to  the  same  I'ules  as  an  answer  from  necessity." 
Wigram  on  Discovery,  193. 

The  exceptions  not  allowed  by  the  Master,  it  is  insisted,  are 
to  matters  wholly  irrelevant;  and  which,  if  admitted  would  not 
entitle  com]ilainant  to  a  decree  in  his  favor.  To  determine  tlie 
relevancy  of  the  matters  excepted  to  as  not  answered,  we  must 

471 


522  CASES  IN  CHANCERY. 

Gilkey  v.  Paige. 

look  to  the  case  made  bj  the  bilL  Defendant  having  adver- 
tised for  sale,  under  the  statute,  certain  premises  mortgaged  to 
him  by  complainant  for  $400,  the  latter  filed  his  bill  to  obtain 
an  injunction  against  the  sale,  and  for  other  and  further  relief. 
The  bill  alleges  usury  in  the  loan  of  money  for  which  the  mort- 
gage was  given.  It  also  alleges  that  the  bills  of  the  Farmers' 
Bank  of  Genesee  County  were  received  as  money;  that,  soon 
after,  the  bank  failed;  that  some  of  the  bills  which  complain- 
ant had  passed  off,  before  he  knew  of  the  insolvency  of  the 
bank,  were  returned  to  him ;  that  some  he  disposed  of  after- 
wards for  a  trifle,  and  that  he  still  had  a  considerable 
amount  of  them  on  hand.  It  also  alleges  that  the  pretended 
bank  was  a  fraudulent  institution;  and  charges  various  facts 
and  circumstances  relative  to  its  mode  of  doing  business,  in 

proof  of  the  fraud,  and  connecting  defendant  with  it. 
[*522]  There  is  no  special  jjrayer  for  relief;  but  under  the  ^gen- 

eral  prayer,  complainant  may  have  such  relief  as  the 
nature  of  the  case  made  by  the  bill  will  warrant.  The  excep- 
tions not  allowed  by  the  Master,  relate  to  the  fraudulency  of 
the  institution.  Now,  should  complainant  be  able  to  prove  the 
bank,  from  its  inception  throughout,  was  intended  to  defraud 
the  community;  that  defendant  was  a  party  to  the  fraud;  and 
the  complainant  still  retains  in  his  possession  a  part  of  the  bills 
received  by  him  of  defendant,  would  it  be  contended  no  relief 
could  be  given,  and  that  the  amount  of  such  bills  should  not 
be  deducted  from  what  is  due  on  the  mortgage?  It  is  unneces- 
sary to  go  further,  on  the  present  occasion,  and  say  what  would 
be  the  effect  of  such  fraud  on  the  mortgage  itself,  as  between 
the  parties  to  it. 

"When  irrelevancy  is  made  a  ground  for  refusing  to  answer 
a  particular  question,  or  part  of  a  bill,  it  should  appear  an 
answer,  in  no  aspect  of  complainant's  case  as  made  by  the 
bill,  could  be  of  service  to  him. 

Exceptions  to  Master's  report  allowed. 


472 


SECOND  CIRCUIT,  FEBRUARY,  18i5.  523 

Sutherland  v.  Crane. 


*JoHN  Sutherland  v.  Flavius  J.  B.  Crane.  po23] 

Parol  evidence  cannot  be  received  to  add  to,  or  vary  the  terms  of  a  written 
instrument.^  It  may  be  introduced  for  the  purpose  of  showing  fraud,  or 
a  mistake  in  drawing  the  instrument,  when  the  fraud  or  mistake  is  set 
forth  in  the  bill,  and  the  relief  asked  is  based  upon  it;  but  not  otherwise.'^ 

Motion  to  dissolve  injunction. 

The  bill  in  this  case  was  filed  to  restrain  proceedings  at  law 
on  a  promissory  note,  executed  bj  Solomon  Sutherland,  Thomas 
M.  Sutherland,  and  complainant.  It  alleged  that  defendant, 
having  attached  certain  real  estate  of  Solomon  Sutherland  for 
a  debt,  agreed  at  the  time  of  executing  the  note,  which  was 
given  in  settlement  of  the  attachment  suit,  that  if  Thomas 
and  complainant  would  sign  it  with  Solomon,  the  attachment 
suit  should  be  discontinued;  and  defendant  would  receive  State 
scrip,  or  State  warrants,  in  payment  of  the  note.  That  Solo- 
mon afterwards  offered  to  pay  the  note  in  State  warrants,  which 
defendant  refused  to  receive;  and,  in  a  day  or  two  thereafter, 
sued  complainant  on  the  note.     That  the  attachmant  suit  had 

^  See,  generally,  Martin  v.  Hamlin,  18  Mich.,  354;  Vandekarr  v.  Tliompson, 
19  id.,  82;  Jones  v.  Phelps,  5  id.,  218;  Adair  v.  Adair,  5  id.,  204;  Bowker  v. 
Johnson,  17  id.,  42;  Abell  v.  Munson,  18  id.,  306;  Picard  v.  McCormick,  11 
id.,  6S,  bill  of  sale;  Rowe  v.  Wright,  12  id.,  289,  receipted  bill  of  parcels; 
Trivilick  v.  Mumford,  31  id.,  467;  Seaman  v.  O'Hara,  29  id.,  66;  Sirrine  v. 
Briggs,  31  id.,  443:  Beers-r.  Beers,  22  id.,  42:  Blackwood  v.  Brown,  34  id.,  4. 

A  deed  of  lands,  though  absolute  in  form,  may  in  equity  be  shown  to  be  a 
mortgage,  Wadsworth  v.  Loranger,  Harr,  Ch.,  113;  Emerson  v.  Atwater,  7 
Mich.,  12. 

So  at  law,  as  to  a  bill  of  sale  of  personalty.  Fuller  v.  Parish,  3  Mich., 
211. 

A  witness  may  be  asked  whether  a  deed  and  mortgage  have  been  given, 
the  question  not  calling  for  their  contents.    Clemens  v.  Conrad,  19  Mich.,  170 

-  As  to  a  patent  from  the  United  States  not  being  impeachable  at  law  fot 
fraud  or  mistake.  See  Bruckner  v.  Lawrence,  1  Doug.,  19. 

As  to  disproving  identity  of  patantee.  see  Stockton  v.  Williams,  ante,  120, 
8.  c,  1  Doug.,  546;  Campau  v.  Dewey,  9  Mich.,  381. 

473 


524  CASES  IX  CHANCERY. 

Sutherland  v.  Crane. 

not  been  discontinued,  and  complainant  was  ready  and  willing 
to  pay  tlie  note  in  State  warrants.  An  injunction  having  been 
granted,  a  motion  was  made  to  dissolve  it. 

]V.  B.  Ramsdell,  in  support  of  the  motion. 
O.  Hawkins^  contra. 

The  Chancellor.  Parol  evidence  cannot  be  received  to  add 
to,  or  vary  the  terms  of  a  written  instrument.  It  may  be  in- 
troduced for  the  purpose  of  showing  fraud,  or  a  mistake 
[*524:j  in  drawing  the  instrument,  when  the  fraud  or  ^mistake 
is  set  forth  in  the  bill,  and  the  relief  asked  is  based  upon 
it;  but  not  otherwise.  Wesley  v.  Thomas,  6  Harr.  &  John. 
R.  24.  The  bill  does  not  charge  the  note,  on  which  complain- 
ant has  been  sued,  is  not  what  it  was  understood  and  intended 
to  be  when  it  was  executed.  There  is  no  allegation  it  was  to 
have  been  drawn  payable  in  State  scrij),  or  State  warrants,  and 
that  these  words  were  left  out  by  mistake,  or  were  omitted  in 
consequence  of  any  fraudulent  representation  of  defendant. 

As  to  attachment  suit,  the  Court  in  which  it  is  pending  has 
ample  power  to  protect  the  rights  of  the  parties,  and  order  a 
discontinuance  on  payment  of  the  note. 

Injunction  dissolved,  with  $5  costs  to  defendant. 


474 


SECOND   CIRCUIT,  FEBRUARY,  1845.         525 

Quackenbush  v.  Campbell,  adin.,  &c. 


*Orson  Quackenbush  v.  Bradford  Campbell,  [*o2o] 

ADMINISTRATOR   de  bouis  71071,   OF  THE  ESTATE 

OF  William  A.  Clark,  deceased,  and   James   J. 
Forsyth. 
The   Same  v.  Bradford  Campbell,   administrator, 

&c.,  and  Anthony  Froemer. 

The  Same  v.  Bradford  Campbell,  administrator, 

&c.,  and  Joseph  Alexander. 

Where  an  estate  had  been  represented  insolvent  by  an  administrator  de  bonis 
non,  a  motion  was  granted  stajang  proceedings  on  execution,  for  balances 
due  on  certain  mortgage  foreclosures,  (not  being  such  debts  as  are  pre- 
ferred by  law,)  which  had  been  levied  before  such  repi-esentation  of  insol- 
vency. 

It  is  immaterial  whether  the  estate  be  represented  insolvent  by  the  original 
administrator,  or  the  administrator  de  bonis  non;  the  provisions  of  the 
statutes  applying  to  the  former,  apply  also  to  the  latter,  whei-e  there  is  no 
express  provision  to  the  contrary. 

No  time  is  limited  by  statute,  within  which  an  estate  must  be  declared  insol- 
vent by  an  executor  or  administrator. 

Motion  on  the  part  of  tlie  administrator  de  bonis  noTi,  in 
each  of  the  above  cases,  to  stay  proceedings  on  an  execution 
issued  for  a  balance  reported  to  be  due  from  the  intestate's 
estate,  after  sale  of  mortgaged  premises  by  Master  under  decree. 

Kingsley  c&  Miles,  in  sujjport  of  the  motion. 

Lawrence  <&  Fletcher,  contra. 

The  Chancellor.  Since  the  levy  of  the  executions  on  the 
real  estate  belonging  to  the  intestate  during  his  lifetime,  the 
estate  has  been  represented  insolvent  in  tlie  Probate  Court  by 
the  administrator  de  lonis  non,  who  asks  for  an  order  staying 
all  further  proceedings  on  the  execution,  until  the  question  of 
insolvency  is  determined  in  that  Court. 

475 


526  CASES  l^  CIIANCERy. 

Quackenbush  r.  Campbell,  adm.,  &c. 

Tlie  statute  provides  that  "  Ko  action  shall  be  brought 
[*526]  ^against  an  executor  or  administrator,  after  the  estate  is 

represented  insolvent,  unless  it  be  for  a  demand  that  is 
entitled  to  preference,  and  could  not  be  effected  by  the  insol- 
vency of  the  estate,  or  unless  the  assets  should  prove  more  than 
sufficient  to  pay  all  the  debts  allowed  by  the  commissioners ;  and 
if  the  estate  is  represented  insolvent,  while  an  action  is  pend- 
ing against  the  executor,  or  administrator,  for  any  demand  that 
is  not  entitled  to  such  preference,  the  action  may  be  discontin- 
ued without  the  payment  of  costs;  or,  if  the  demand  is  dispu- 
ted, the  action  may  be  tried  and  determined,  and  judgment 
jnay  be  rendered  thereon  in  like  manner,  and  with  the  same 
eifect,  as  is  provided  in  a  case  of  an  appeal  from  the  award  of 
the  commissioners;  or  any  action  may  be  continued  at  the  dis- 
cretion of  the  Court,  without  costs  to  either  party,  until  it  shall 
appear  whether  the  estate  is  insolvent;  and  if  it  shall  not  prove 
to  be  insolvent,  the  plaintiff  may  prosecute  the  action  as  if  no 
such  representation  had  been  made."     E.  S.  298,  §  19. 

No  time  is  fixed  by  the  statute,  within  wliich  the  estate 
must  be  represented  insolvent.  The  tenth  section  (R.  S.  288,) 
provides,  that  no  executor  or  administrator  shall  be  held  to  an- 
swer to  the  suit  of  any  creditor  of  the  deceased,  if  commenced 
within  one  year  after  his  giving  bond  for  the  discharge  of 
his  trust,  except  in  certain  cases,  but  does  not  require  the  estate 
to  be  represented  insolvent  in  the  Probate  Court  within  the 
year.  On  the  contrary,  section  twelve  {R.  S.  289)  provides  in 
express  terms,  that  the  estate  may  be  represented  insolvent 
after  the  expiration  of  the  year,  and  after  a  part  of  the  cred- 
itors have  been  paid.  In  Walke?'  v.  Hill,  17  Mass.  R.  380, 
the  estate  was  represented  insolvent  between  three  and  four 
years  after   administration   granted;    and   the   administrator, 

in  that  case,  recovered  back  a  part  of  a  claim  paid  by 
[*527J  him  in  full  *betore  the  expiration  of  the  year, — the  estate 

afterwards  proving  insolvent,  by  reason  of  the  presenta- 
tion of  claims  of  which  the  administrator  had  no  notice  at  the 
time.  A  like  recovery  was  had  by  the  same  administrator,  in 
Walker  v.  Bradley,  3  Pick.  R.  261. 

476 


SECOXD  CIRCUIT,  FEBRUARY,  lS4o.         52S 

Hemingway  r.  Preston, 

It  is  immaterial  whether  tlie  estate  be  represented  insolvent 
l»y  the  original  administrator,  or  an  administrator  de  honis  non. 
In  Hemenway  v.  Gates,  5  Pick.  R.  321,  it  was  held  that,  "  where 
an  administrator  dies  within  fonr  years  from  the  grant  of  ad- 
ministration, and  an  administrator  de  honis  non  is  appointed, 
actions  of  creditors  are  not  barred  until  after  the  expiration  of 
four  years  from  the  last  grant  of  administration."  Tliat  the 
two  administrators  could  not  be  connected  together,  for  the  pur- 
pose of  making  out  the  four  years,  within  which  creditors  were 
required  to  bring  their  suits.  The  statute  was  subserpiently 
amended,  and  the  amendment  is  to  be  found  in  our  own  statute. 
Reasoning  from  analogy,  it  would  seem  the  different  provisions 
of  the  statute  applicable  to  an  original  administrator,  are  equally 
applicable  to  an  administrator  de  bonis  noti,  where  there  is 
nothing  to  the  contrary  in  the  statute  itself.  If  so,  no  suit 
under  the  tenth  section  of  the  act,  except  such  as  are  therein 
provided  for,  could  be  brought  against  an  administrator  de  honis 
non,  until  the  expiration  of  a  year  after  his  appointment;  and, 
in  the  present  case,  the  estate  was  represented  as  insolvent  by 
the  administrator  de  honis  non,  within  the  year. 

The  several  executions  being  for  demands  that  will  be  affected 
by  the  insolvency  of  the  estate,  all  further  proceedings  upon 
them  must  be  stayed,  until  it  is  ascertained  by  the  proceedings 
in  the  Probate  Court,  whether  the  estate  is  insolvent  or  not; 
and  until  the  further  order  of  this  Court.  Ilzint  v.  Whitney, 
4  Mass.  R.  620;  Coleman  v.  Hall,  12  Mass.  R.  570;  Clarh  v. 
May,  11  Mass.  R.  233. 


^Needham  Hemingway  v.  Foster  D.  Peestox.  [===528] 

Where  an  injunction  had  been  grranted,  enjoining  defendant  from  interfering 
with,  or  encumbering  certain  lands  and  premi^^es,  and  defendant,  at  and 
prevdous  to  the  granting  of  the  injunction,  being  in  possession  of,  and  churn- 
ing title  to,  a  mill  on  the  land,  forcibly  put  out  two  agents  of  the  complain- 
anl;  who  came  into  the  mill  after  the  uijunction  had  been  served,  and  re- 

477 


529  CASES  IX  CHANCEKY. 

Hemingway  v.  Preston. 

fused  to  leave  when  requested,  it  was  held  to  be  no  violation  of  the  injunc- 
tion, which  was  not  intended  to  dispossess  the  defendant. "• 

Motion  for  an  attachment  for  a  violation  of  an  injunction. 

The  injunction  was  granted  on  January  24th,  1845,  and,  on 
the  same  day,  served  on  defendant,  commanding  him  "abso- 
lutely to  desist  and  refrain  from  making  any  conveyance  of,  or 
creating  any  incumbrance  or  lien  whatever  upon,"  certain  prem- 
ises described  in  the  writ;  and  that  he  should  ^'' ahsolufely  7'e- 
frain  and  desist  from  any  interference  lohatever  with  the  said 
land,  real  estate  and  premises,  or  the  appurtenances  to  the  same 
in  anywise  belonging,"  until  the  further  order  of  the  Court. 
Preston,  it  appeared,  was  in  possession  of  a  mill  on  the  premises 
described  in  the  injunction,  at  the  time  the  writ  was  granted, 
claiming  title  thereto,  and  had  been  for  three  weeks  previous. 
On  the  25th  of  January,  the  day  after  the  allowance  and  service 
of  the  injunction,  one  Spencer,  in  the  employ  of  complainant, 
and  Henry  S.  Hemingway,  a  son  of  complainant,  were  in  the 
mill,  whither  they  had  gone  by  complainant's  direction;  and 
the  miller  having  charge  of  the  mill  for  Preston,  wishing  to 
lock  up  and  go  to  his  dinner,  requested  them  to  leave,  which 
they  refused  to  do.  Preston,  being  informed  of  what  had  taken 
place,  went  to  the  mill,  and  finding  them  there,  requested  thejn 
to  leave,  which  they  refused,  when  he  put  them  out  by  force. 

[*529]     ^Stevens,  in  support  of  the  motion. 

R.  Hosmer,  contra. 

The  Chancellok.  The  injunction  does  not  require  Preston 
to  do  any  act,  but  to  refrain  from  doing  certain  acts.  It  is 
wholly  negative  in  its  character,  and  was  intended,  as  is  mani- 
fest from  its  language,  to  prevent  him  from  disturbing  or  mo- 
lesting the  actual  possession  or  occupancy  of  complainant;  and 
nothing  more.  It  was  not  designed  to  dispossess  defendant,  or 
to  turn  him  out  of  possession,  and  put  complainant  in. 

Motion  denied,  with  $5  costs  to  defendant. 

1  See  People  v.  Simonson,  10  Mich.,  335;  Ramsdell  v.  Maxwell,  32  id., 
285. 

478 


FIllST  CIRCUIT,  MxiRCII,  1845.  530 


Thurston  v.  Prentiss. 


Daniel  Thurston  v.  Azariah  Prentiss,  David 
Phelps,  John  Price,  Jonas  Crissman,  and  Amos 
Dalby.^ 

The  effect  of  usury  under  our  statute  is,  not  to  avoid  the  contract,  but  to  re- 
duce the  amount  which  the  usurer  is  entitl(>(l  to  recover  to  the  money  ac- 
tually loaned,  with  legal  interest.* 

Where  a  surety,  whose  property  had  been  levied  on,  paid  a  jud{?ment  con- 
fessed by  himself  and  principal  for  a  usurious  loan,  with  a  knowledge  of 
the  usury,  it  ivas  held,  that  he  might  recover  the  amount,  so  paid  by  him, 
of  his  principal.' 

Where  a  mortgage  of  indemnity  was  foreclosed  at  law,  before  the  mortgagee 
had  been  damnified,  the  mortgagor  was  held  entitled  to  redeem.* 

Ox  Marcli  15th,  1839,  complainant  applied  to  defendant 
Prentiss  for  a  loan  of  $300,  which  Prentiss  agreed  to  make, 
provided  complainant  would  allow  him  $100  for  the  use  of  it 
till  October  tlien  next;  which  terms  complainant  acccepted, 
and  it  Avas  agreed  between  them  that  the  whole  sum 
of  $400  should  be  embraced  in  two  notes  *of  $200  each,  [*530] 

1  Affirmed,  1  Mich.,  193. 

*See  Craig  v.  Butler,  9  Mich.,  21. 

On  an  usurious  contract  the  plaintiff  may  always  recover  interest  up  to  the 
highest  legal  rate  not  prohibited  by  the  statute,  if  such  are  the  express  terms 
of  the  contract.     Smith  v.  Stoddard,  10  Mich.,  148. 

As  to  the  rule  where  a  new  security  has  been  taken,  see  Smith  i\  Stoddard, 
supra;  Craig  v.  Butler,  supra;  Collins  Iron  Co.  r.  Burkham,  10  Mich.,  28-'i. 

The  borrower  has,  under  the  statute,  no  remedy,  but  the  deduction  of  tho 
amount  payable  by  the  terms  of  the  contract  over  and  above  the  principal  and 
legal  interest.     Craig  r.  Butler,  supra. 

And  that  deduction  may  ba  made  wher3  the  suit  is  brought  in  equity.  a.s 
well  as  in  an  action  at  law,  notwithstanding  the  word  "  action  "  is  used  in  the 
statute.     Coatsworth  v.  Barr,  11  Mich.,  199. 

*  But  where  the  usurious  interest  paid  by  the  surety,  is  paid  for  the  pur- 
pose of  obtaining  time  in  which  to  pay  his  principal's  debt,  the  excessive  in- 
terest so  paid  by  him  can  not  be  collected  of  his  principal.  Tliurston  r.  Pren- 
tiss. 1  Mich.,  19:1 

*See  s.  c,  1  Mich.,  193;  Dye  r.  Mann,  10  Mich.,  291;  Butler  v.  Ladue,  12 
id.,  173. 

479 


531  CASES  IN  CHANCEKY. 

Thurston  v.  Prentiss. 

signed  bv  tlie  complainant  and  some  other  person,  npon 
which  judgments  should  be  confessed  before  a  justice  of  the 
peace,  and  execution  stayed.  Complainant  and  Phelps  ex- 
ecuted the  notes  and  confessed  judgments  upon  them,  and  the 
defendant,  John  Price,  stayed  execution  until  July  16th,  in  the 
same  year.  Price  and  Phelps  required  complainant  to  execute  a 
note  and  mortgage  for  $650,  payable  on  the  first  of  August 
therealter,  which  they  caused  to  be  immediately  recorded;  the 
consideration  for  which  was  their  becoming  sureties  for  com- 
plainant. After  the  expiration  of  the  stay,  an  execution  was 
taken  out,  and  levied  on  Phelps'  property,  who  executed  a 
mortgage  to  Prentiss,  payable  July  1st,  1841,  to  secure  the 
amount.  The  mortgage  of  idemnity  was  foreclosed  under  the 
statute,  and  bid  oif  by  Phelps  for  $438,  on  November  4th,  1839, 
at  which  time  he  had  not,  nor  had  Price,  paid  anything  to 
Prentiss,  or  become  damnified  as  complaina>nt's  sureties.  Criss- 
man  afterwards  purchased  the  interest  of  Phelps  and  Price  in 
the  land.  August  27th,  1841,  Phelps  paid  to  Prentiss  the 
amount  secured  by  his  mortgage,  and  took  receipts  in  full  of 
the  judgments,  and  had  the  mortgage  canceled;    allowing  ten 

per  cent  interest  thereon. 

• 

IT.  T.  Backus^  for  complainant. 

R.  P.  Eldredge^  for  defeudents. 

The  Ciiancellok.  I  entertain  no  doubt  in  regard  to  the 
usury.  The  answers  of  the  several  defendants  are  clearly  evasive 
on  that  point;  especially  the  answer  of  Prentiss. 

The  effect  of  usury,  under  our  statute,  is  not  to  avoid  the 

contract,  as  is  the  case  with  ]nany  statutes  on  that  sub- 

[*531]  ject;  but  to  reduce  the  amount  which  the  usurer  is  *en- 

titled  to  recover,  to  the  money  actually  loaned,  with 

legal  interest.     Laws  1843,  p.  54. 

Phelps,  as  surety  for  complainant,  having  paid  the  judg- 
ments confessed  by  himself  and  complainant  to  Prentiss,  and 
stayed  by  Price,  for  the  money  loaned,  and  usury, — with  full 
knowledge  of  the  usury, — the  question  is,  whether,  under  the 
480 


FIRST  CIRCUIT,  MARCH,  1845.  532 

Thurston  v.  Prentiss. 

mortgage  to  indeiniiify  liiinself  and  Price,  lie  can  recover  tlie 
excess  of  interest  paid  by  liim,  as  well  as  the  money  actually 
loaned  by  Prentiss  to  complainant,  with  interest. 

If  the  judgments  had  been  void,  in  consequence  of  the  usury, 
he  would  have  paid  them  in  his  own  wrong;  and,  as  it  was,  he 
might  have  filed  his  bill  in  this  Court,  and  on  paying  what 
was  actually  loaned,  with  interest,  have  obtained  relief  against 
the  usury.  But  was  he  bound  to  do  so?  Was  it  not  complain- 
ant's duty  to  have  done  it,  if  he  intended  to  object  to  ])aying 
the  illegal  interest?  It  belongs  more  properly  to  a  principal 
to  protect  his  surety,  than  a  surety  his  principal.  The  bill 
charges  collusion  between  Phelps  and  Prentiss,  but  there  is  no 
evidence  of  it.  On  the  contrary,  Phelps  appears  to  have  acted 
in  good  faith,  in  paying  the  judgments.' 

Phelps  paid  the  jud^gments  in  August,  1841.  He  was  then, 
and  not  till  then,  damnified.  The  mortgage  he  executed  to 
Prentiss  to  get  his  property  released  from  the  executions,  was 
no  satisfaction  of  the  judgments.  It  was  not  received  in  satis- 
faction, or  payment,  but  as  securety  merely.  Phelps  and  Price, 
consequently,  were  not  damnified  when  they  foreclosed  the 
mortgage  from  complainant  to  them  by  advertisement  and  sale 
under  the  statute.  The  statutory  foreslosure  amounted  to 
nothing;  and  complainant  has  a  right  to  redeem,  on  payino- 
the  amount  of  the  two  judgments,  with  seven  per  cent,  inter- 
est, and  defendant's  costs  in  the  present  suit.  The 
interest  due  when  *the  judgments  were  paid  by  Phelps  [*532] 
to  be  added  to  the  principal,  and  interest  to  be  com- 
puted on  the  whole  amount  from  that  time  forward.  The  ten 
per  cent,  interest  paid  by  Phelps  on  the  judgments,  in  consid- 
eration of  time,  was  usurious,  and  paid  in  his  own  wrono-;  and 
cannot  be  allowed  to  him  or  his  assignee,  Crissman,  who  is  the 
party  beneficially  interested  in  the  mortgage. 

There  must  be  a  reference  to  a  Master  to  compute,  on  the 
])rinciples  abov^e  stated,  the  amount  due  on  the  morto-age  exe- 
cuted by  complainant  to  Phelps  and  Price;  and  on  the  comino- 
in  of  the  report,  a  decree  must  be  entered  permittino-  com- 
plainant to  redeem  within  six  months,  &c. 

YoL.  I.— 31  481 


533  CASES  IN  CHANCERY. 


Emmons  v.  Emmons. 


Amanda  Emmons  v.  Nelson  H.  Emmons. 

Where  a  bill  for  a  divorce  is  taken  as  confessed,  and  a  reference  is  tiad  to  a 
Master  to  take  proof  of  the  material  facts  in  the  bill,  he  must  report  his 
opinion  on  them,  with  the  testimony  taken. 

The  object  of  a  reference  in  this  class  of  cases,  is  to  guard  against  collusion  by 
the  parties;  and  the  Mastei-,  in  addition  to  the  questions  asked  by  com- 
plainant, should  examine  the  witnesses  himself,  that  he  may  give  his 
opmion  understandingly. 

Bill  for  a  divorce  for  adultery. 

Defendant  not  having  appeared  in  the  cause,  the  papers  were 
submitted  to  the  Court,  by 

J.  K.  Rugg,  for  complainant. 

The  Chancelloe.     The  101st  rule  of  the  Court  provides, 
that,  when  a  bill  for  a  divorce  is  taken  as   confessed,  or  the 

facts  charged  therein  are  admitted  by  the  answer,  the 
[*533]  ^complainant  may  apply  to   the  Court  on  any  regular 

motion  day,  or  in  term,  npon  due  proof  of  the  regu- 
larity of  the  proceedings  to  take  the  bill  as  confessed,  or  up- 
on the  bill  and  answer,  for  a  reference  to  a  Master  to  take 
proof  of  all  the  material  facts  charged  in  the  bill,  and  to  re- 
port snch  proof  to  the  Court,  ^oith  his  opinion  thereon.  By 
the  100th  rule,  the  bill  is  required  to  be  sworn  to,  and,  if  it  be 
for  a  divorce  on  the  ground  of  adultery,  to  contain  an  averment 
that  the  adultery  charged  in  the  bill  was  committed  without  the 
consent,  connivance,  privity,  or  procurement  of  complainant; 
and  that  complainant  has  not  voluntarily  cohabited  with  de- 
fendant, since  the  discovery  of  such  adulteiy. 

The  statute  provides  no  divorce  shall  be  granted,  unless  com- 
plainant, or  petitioner,  shall  prove  his  or  her  residence  in  the 
State  for  one  year  next  preceeding  his  or  her  application;  or 
tliat  the  marriage  was  solemnized  in  the  State,  and  the  appli- 
cant has  resided  therein  from  the  time  of  such  marriage,  to  the 

482 


FIllST  CIRCUIT,  MARCH,  1845.  534 

Emmons  v.  Emmons. 

time  of  Lis  or  her  application.     Tl.  S.  337,  §  G;  LaM's  1842,  ]>. 
IIG;   Laws  1844,  p.  74. 

Ill  the  present  case,  there  is  no  ]iositive  evidence  of  coni- 
])lainaiit's  residence  in  the  State,  for  tiie  year  next  precedinij 
her  application.  It  may,  jjerhaps,  be  inferred  from  a  portion 
of  tlie  testimony  taken  by  the  Master  for  another  pnrpose;  bnt 
there  slionld  be  some  better  evidence  of  a  fact  so  easily  ]>roved« 
and,  where  it  exists,  so  susceptible  of  positive  testimony,  tliaii 
an  inference,  for  the  Court  to  base  its  decision  on. 

The  Master  has  re])orted  the  proofs  taken  by  him,  but  not  hi.s 
opinion  thereon^  as  required  by  the  101st  rule.  The  object  of  a 
reference  in  this  class  of  cases  is  to  guard  against  collusion  be- 
tween the  parties;  and  the  Master  is,  therefore,  not  only  required 
to  take  proof  of  all  the  material  facts  charged  in  the 
bill,  but  also  to  report  the  same,  *with  his  opinion  there-  [*534] 
on,  to  the  Court.  It  is  his  duty  to  examine  the  witnesses 
himself,  as  well  as  to  take  down  their  answers  to  such  questions 
as  may  be  asked  them  by  complainant,  so  as  to  enable  him  to 
give  his  opinion  understandingly,  as  to  the  truth  of  every  ma- 
terial allegation  or  averment  in  the  bill.  7  Paige  11.589;  0 
Paige  R.^5S9. 

jSfeither  is  there  any  proof  complainant  has  not  voluntarily 
cohabited  with  the  defendant  since  the  discovery  of  the  adultery. 
The  Master  should  have  required  testimony  as  to  the  discovery 
of  the  adultery  by  complainant,  and  M'hether  there  had  been  a 
condonation  of  the  offense,  by  a  voluntary  cohabitation  since. 

The  only  witness  to  the  offense  is  a  ixirticeps  criminis,  who 
is,  nevertheless,  a  competent  witness,  but  whose  testimony 
should  be  corroborated  by  some  collateral  evidence.  Popiter 
on  Marr.  and  Div.  198,  note  p. 

It  must  be  referred  back  to  the  Master  to  take  further  proofs, 
jmd  to  make  a  full  report,  stating  therein  his  opinion  as  to  the 
truth  of  every  material  fact  stated  in  the  bill. 


483 


535  CASES  m  CHANCERY 


Fox  V.  Clark. 


[*o35]  *Geoege  Fox  and  Chaeles  Coleman  v.  Eli- 
SHA  B.  Claek,    John    Drew,  William  H. 
Willis,  Alfred  Willis,  Edward  Willis  and  Euro- 
TAs  P.  Hastings. 

A  deed  made  to  defraud  creditors  is  void,  and  does  not,  as  against  them,  di- 
vest the  fraudulent  grantor  of  his  title,  before  the  property  has  been  con- 
veyed by  the  fraudulent  grantee,  for  a  valuable  consideration,  to  a  third 
person  without  notice  of  the  fraud;  when  the  deed  becomes  operative 
against  creditors,  for  the  purpose  of  protecting  the  uinocent  purchaser  and 
vesting  the  title  in  him. 

A  mortgage  given  by  a  fraudulent  grantor  to  a  creditor,  to  secure  "the  pay- 
ment of  a  judgment,  is  good  against  the  fraudulent  grantee,  and  all  claim- 
ing under  him  with  notice  of  the  fraud. 

It  is  also  good  against  a  creditor  of  the  fraudulent  grantor,  who  has  had  the 
assignment  set  aside,  but  who  had  acquired  no  lien  on  the  property  for 
his  debt  prior  to  the  mortgage.^ 

The  bill  in  this  case  was  filed  December  13th,  1842,  to  fore- 
close a  mortgage  executed  bj  the  defendant  Clark,  to  complain- 
ants, on  the  20th  day  of  Angnst,  1839,  and  recorded  on  the 
23d  day  of  September  following.  The  mortgage  was  given  to 
secure  a  judgment  for  $1,462.09,  recovered  June  20th,  1838, 
by  complainants,  against  Clark  and  one  Joseph  McCrary,  in 
the  Circuit  Court  of  the  United  States  for  the  District  of  Micli- 
igan. 

On  July  11th,  1838,  the  defendants  Willis  recovered  a  judg- 
ment in  the  same  Court,  for  $953.83,  and  costs,  against  Clark 
and  McCrary,  on  which  execution  was  issued  on  the  27th  day 
of  the  same  month,  but  nothing  was  collected  thereon.  On 
June  9th,  1838,  previous  to  the  rendition  of  either  of  the  above 
judgments,  Clark  assigned  all  his  property  to  one  Dallee,  in 
trust  for  his  creditors.  In  October,  1840,  the  Willises  filed  a 
bill  on  the  equity  side  of  the  Circuit  Court,  to  set  aside  the 

^Tliis  case  was  reversed  in  1  Mich.,  321,  Fox  v.  Wilhs.  See,  also,  Cleland 
V.  Taylor,  3  Mich.,  206. 

484 


FIRST  CIRCUIT,  MARCH,  1S45.  530 

Fox  r.  Clark. 

assie^nment,  which  embraced  tlie  inortga_<^ed  premises,  as 
fraudulent  against  ^creditors;  and  obtained  a  decree  in  [*536J 
Marcli,  1842,  declaring  the  assignment  null  and  void, 
and  appointing  a  receiver;  who,  on  August  2d,  1842,  sold  the 
l^remises  in  question  at  public  auction,  when  they  were  pur- 
chased by  the  Willises. 

S.  Barstow  and  II.  N'.  Walker,  for  complainants,  insisted 
that  the  assignment  from  Clark  to  Dallee  was  void,  and  not 
voidable  merely,  and  had  been  so  declared  by  a  competent  tri- 
bunal ;  and  that  the  mortgage  to  complainant  was  therefore 
in  all  points  good,  the  title  then  remaining  in  Clark,  who  was 
justly  indebted  to  them.  That  the  defendants  Willis  and 
Drew  were  affected  with  notice  by  the  recording  of  it,  at  the 
time  when  they  commenced  their  proceedings  to  set  aside  the 
assignment;  and  the  deed  from  Drew  was  made  subject  to  the 
title  and  interest  of  complainants  under  the  mortgage. 

A.  D.  Fraser  and  A.  Davidson,  for  defendants  Drew  and 
Willis,  contended  that  the  assignment  was  merely  voidable,  and 
complainants,  or  any  other  creditors  of  Clark,  could  only  take 
advantage  of  its  being  so,  by  proceeding  to  impeach  it  ;  that 
defendants,  having  proceeded  to  impeach  it  and  obtained  a 
decree  setting  it  aside,  and  also  a  sale,  and  claiming  under  that 
sale,  have  obtained  a  perfect  title  to  the  premises,  clear  of  com- 
plainants' mortgage. 

The  Chancellor.  The  deed  from  Clark  to  Dallee  is  con- 
ceded to  be  fraudulent  as  to  creditors  by  all  parties.  Both 
complainants  and  the  Willises  are  constrained  to  admit  it,  to 
make  out  a  good  title  in  themselves.  Both  claim  a  right  to  the 
mortgaged  premises  as  creditors  of  Clark  ; — complainants  by 
virtue  of  their  mortgage,  and  the  Willises  under  the  receiver's 
deed.  The  controversy  is  one  between  creditors  for  the  prop- 
erty of  an  insolvent  debtor. 

*The  statute  declares  every  conveyance  or  assignment  [*537] 
made  with  intent  to  hinder,  delay,  or  defraud  creditors, 

485 


538  CASES  m  CHANCERY. 

Fox  v.  Clark. 

or  other  persons,  of  tlieir  lawful  suits,  damages,  forfeitures, 
debts,  or  demands,  as  against  the  persons  so  hindered,  delayed 
or  defrauded,  shall  be  void.    R.  S.  331,  §  1,  Ch.  3.  Tit  6,  Part  2. 

The  fifth  section  of  the  same  chapter  is  in  these  words:  "The 
provisions  of  this  title  shall  not  be  construed,  in  any  manner, 
to  affect  or  impair  the  title  of  a  purchaser  for  a  valuable  consid- 
eration, unless  it  shall  appear  that  he  had  previous  notice  of  the 
fraudulent  intent  of  his  immediate  grantor,  or  of  the  fraud  ren- 
dering void  the  title  of  such  grantor." 

Taking  the  two  sections  together,  their  meaning,  it  seems  to 
me,  is  this.  Every  conveyance  made  to  hinder,  delay,  or  defraud 
creditors,  as  against  such  creditors,  is  wholly  void ;  or,  in  other 
words,  as  between  the  parties  to  such  conveyance,  and  the  cred- 
itors of  such  fraudulent  grantor,  (although  it  is  otherwise  as 
between  the  parties  to  the  conveyance,)  the  title  to  the  property 
conveyed  remains  in  the  grantor,  until  the  property  has  been 
conveyed  by  the  fraudulent  grantee  for  a  valuable  considera- 
tion, to  a  third  person,  without  notice  of  the  fraud;  when  the 
fraudulent  conveyance,  by  the  fifth  section  of  the  act,  is  made 
operative  against  creditors,  for  the  purpose  of  protecting  the 
innocent  purchaser,  and  vesting  the  title  in  him. 

The  first  section  declares  the  conveyance  or  assignment  void 
generally  against  creditors,  and  without  any  restriction  or  lim- 
itation whatever; — not  void  as  between  the  parties  to  it,  but 
void  against  the  creditors  of  the  fraudulent  grantor.  The  fifth 
section,  however,  is  a  limitation  on  the  first  section,  and 
restricts  its  operation  to  the  fraudulent  grantee,  and  persons 

claiming  under  him  with  notice. 
[*538]  *0n  the  argument  it  was  insisted  on  the  part  of  com- 
plainants that  the  assignment  to  Dallee  was  absolutely 
void,  as  to  Clark's  creditors,  and  for  the  defendants  that  it  was 
voidable  only.  In  support  of  the  latter  proposition,  the  opinion 
of  the  Yice  Chancellor  in  IlenHques  v.  Hone  was  referred  to ; 
2  Edw.  E.  120.  In  that  case  the  Vice  Chancellor  says,  such 
deeds  are  voidable  only  as  to  creditors  or  purchasers  who  may 
think  proper  to  impeach  them;  and  are  not  utterly  void.  Thus, 
as  against  a  fraudulent  grantor,  the  conveyance  is  effectual  to 

486 


FIRST  CIRCUIT,  MARCH,  1845.  539 

Fox  V.  Clark. 

])ass  the  title,  and  lie  and  his  representatives  are  not  at  liberty 
to  set  up  a  eluini  in  oppij.sition  to  the  deed;  OsIjodi  v.  Jfoss,  7 
J.  R.  161:  and,  for  all  the  ])urposes  of  a  valid  title  in  a  bona 
jide  purchaser  under  a  fraudulent  grantee,  such  grantee  is,  in 
contemplation  of  law,  vested  with  a  legal  and  perfect  title/' 
If,  by  using  the  word  voiddhle  instead  of  void,  as  to  creditors, 
the  Yice  Chancellor  intended  to  be  understood  as  merely  say- 
ing the  deed  was  not  a  nullity,  but  was  good  as  between  the 
parties,  and  for  the  purpose  of  vesting  a  good  title  in  a  bona  fide 
purchaser  without  notice,  before  creditors  had  acquired  a  lien 
on  the  property  for  the  payment  of  their  debts;  he  but  uses  the 
word  voidable  to  express  what  we  understand  to  be  the  mean- 
ing of  the  first  section  of  the  act,  taken  in  connection  with  the 
fifth  section,  in  declaring  all  conveyances  made  to  defraud 
creditors  shall  be»  void.  It  is  supposed,  however,  the  Vice 
Chancellor  meant  something  more  than  this.  That,  by  declar- 
ing such  deeds  voidable  only,  as  to  creditors,  he  meant  the  title, 
not  only  as  between  the  fraudulent  parties  to  the  deed,  but 
also  as  to  creditors,  passed  out  of  the  fraudulent  grantor,  and 
vested  in  the  fraudulent  grantee,  who  could  be  divested 
of  it  only  by  the  decree  or  judgment  of  a  court,  at  tlie 
suit  of  creditors  declaring  the  deed  fraudulent  and  void  as  to 
them.  There  are,  I  admit,  several  parts  of  the  opinion 
*that  will  bear  this  construction.  He  says,  "The entire  [*539] 
interest  and  estate  of  a  fraudulent  grantor,  passes  from 
him  by  such  a  conveyance;  which  would  not  be  the  case  if  it 
were  a  nullity; — while  the  title  must  vest  somewhere,  for  the 
law  does  not  permit  the  fee  to  be  an  abeyance.  It  vests  by 
consequence,  in  the  grantee,  subject  to  be  divested  whenever 
the  creditors  or  persons  aggrieved  think  proper  to  call  in  (pies- 
tion  the  v-alidity  of  the  transaction,  and  show  the  deed  or  con- 
veyance to  be  fraudulent.  And  when  this  is  done,  the  judgment 
or  decree  of  the  Court  is  interposed,  and,  by  force  of  the  stat- 
ute, such  judgment  or  decree  declares  the  instrumejit  to  be 
void,  and  void  in  toto,  as  respects  those  Avho  have  impeached  it, 
and  giving  to  them  the  benefit  of  their  legal  diligence.  Arc. 
"  Upon  these  principles,  it  appears  to  me  impossible  to  con- 

487 


540  CASES  IN  CHANCERY. 

Fox  t\  Clark. 

sider  the  title  to  the  assigned  property  as  thrown  back  uj)on 
the  assignor,  Moffat,  and  as  taking  a  new  start  from  him,  when 
the  assignment  to  Hall  and  Swan  was  declared  void  as  to  the 
creditors  who  had  taken  measures  to  impeach  it.  The  effect  of 
the  decree  was  only  to  divest  the  assignees  of  their  right  and 
control  over  the  property  by  virtue  of  the  assignment,  so  as  to 
have  the  property  applied  to  lawful  purposes,  namely,  to  the 
payment  of  the  debts  of  the  assignor  owing  to  such  of  his 
creditors  as  did  not  choose  to  submit  to  his  terms,  but  who 
pursued  the  legal  remedies,  and  thereby  acquired  preferences 
over  others,  and  priorities  of  payment  out  of  his  estate,"  &c. 

"  The  practice  upon  a  decree  of  requiring  a  release  or  con- 
veyance by  a  person  holding  under  a  voidaMe  deed,  upon 
setting  it  aside,  shows  the  understanding  to  be  that  the  legal 
title,  at  least,  remains  in  him,  and  does  not  return  and  revest 
in  the  original  grantor.     &c. 

"  But,  supposing  the  title  to  the  property  to  have  reverted  to 

Moffat,   and   that   the    receiver   takes    it    as    coming 

[^'540]  '"directly  from  him,"  &c.     "  Although  the  assignment 

may  be  void  as  to  creditors  generally,  legal  measures  are 

still  necessary  on  their  part,  in  order  to  avoid  it,"  &c. 

If  the  title  as  to  creditors  be  in  the  fraudulent  grantee,  and 
he  can  be  divested  of  it  only  by  a  judgment  or  decree  declai-- 
ing  the  conveyance  fraudulent  and  void,  as  to  creditors,  it 
would  seem  to  follow,  as  a  necessary  consequence,  that  a  credi- 
tor, by  obtaining  judgment  and  taking  out  execution  and  sell- 
ing the  property  so  fraudulently  conveyed,  and  jjurchasing  it 
himself,  would  not  acquire  a  title.  For,  if  the  title  as  to  cred- 
itors is  not,  in  contemplation  of  law,  still  in  the  fraudulent 
grantor,  how  could  a  creditor,  by  such  means,  obtain  a  title? 
And  yet  it  has  been  every  daj^'s  practice,  and  has  never,  to  my 
knowledge,  been  questioned.  Ilyslop  v.  Clarl:,  14  J.  R.  458 ; 
Austin  V.  Bell,  20  J.  R.  442 ;  Jackson  v.  Roherts'  executors, 
11  Wend.  R.  422;  DriiihvKiter  y.  Drinhwater,  4:~M.2i&&.  R.  354; 
Meiker  v.  Ham,  14  Mass.  R.  137.  These  cases  show  the  deed 
is  void  against  creditors;  and  that  they  may  levy  upon  the 
property  and  sell  it  to  pay  their  debts,  the  same  after  such 

488 


FIRST  CIRCUIT,  MARCH,   IS-io.  541 

Fox  r.  Clark. 

fraudulent  conveyance  as  before,  any  time  before  it  lias  been 
conveyed  by  the  fraudulent  grantee  to  a  bona  fide  purchaser 
without  notice. 

AVere  it  not  for  the  fifth  section  of  the  act,  a  good  title 
could,  in  no  case,  be  made  against  creditors,  through  the  fraud- 
nlent  conveyance;  not  even  in  favor  of  a  hona  fide  vendee  for 
a  valuable  consideration  Avithout  notice.  It  was  so  decided  by 
the  Supreme  Court  of  Errors  of  the  State  of  Connecticut,  in 
Preston  v.  Crofut,  1  Day  R.  N.  S.  527,  note,  on  the 
statute  of  that  State,  which  contains  no  provision  in  favor 
of  loiia  fide  purchasers,  A  like  decision  was  made  by 
Chancellor  Kent,  in  Rolerts  v.  Anderson,  3  J.  C.  Jl. 
371.  It  is  true  the  decision  of  the  Chancellor  in  that 
case  was  afterwards  reversed  by  the  Court  of  Errors; 
*but  the  only  difference  between  the  Chancellor  and  the  [*541] 
Court  of  Errors  was  that,  while  the  Chancellor  held  the 
proviso  in  favor  of  hona  fide  purchasers  in  their  statute  did 
not  extend  to  such  purchasers  from  a  fraudulent  grantee  to  de- 
fraud creditors,  the  Court  of  Errors  held  the  reverse.  Ch.  J. 
Spencer,  in  eontrovei-ting  the  ground  taken  on  the  argument 
of  the  case  in  the  Court  of  Errors,  says:  "  In  my  judgment, 
the  error  of  those  who  assert,  that  a  fraudulent  grantee  under 
the  13th  of  Eliz.  takes  no  estate,  because  the  deed  is  declared  to 
be  utterly  void,  consists  in  not  correctly  discriminating  between 
a  deed  which  is  an  absolute  nullity,  and  one  which  is  voidable 
only.  1^0  deed  can  be  pronounced,  in  a  legal  sense,  utterly 
void,  which  is  valid  as  to  some  persons,  but  may  be  avoided,  at 
the  election  of  others."  Anderson  v.  Eoherts,  IS  J.  R.  527. 
Again  he  says,  "  I  trust  it  has  sufficiently  appeared,  that  the 
fraudulent  grantee  takes  the  entire  intei-est  of  the  fraudulent 
grantor,  and  that  the  deed  is  voidable,  at  the  instance  of  the 
creditor,  not  legally  and  strictly  void."  P.  531.  But  he  does 
not  thereby  mean  the  estate,  as  against  creditors,  is  so  vested  in 
the  fraudulent  grantee,  that  he  can  be  divested  of  it  only  by 
the  decree  or  judgment  of  a  Court.  For,  in  another  ]iart  of 
his  opinion,  he  says:  "  I  must  be  understood,  as  qualifying  the 
right  of  the  purchaser  Irom  the  fraudulent  vendee.     It  must 

4S9 


.5^2  CASES  m  CHAKCERY. 

Fox  V.  Clark. 

be  prior,  in  point  of  time,  to  a  sale  for  a  valuable  consideration, 
by  the  fraudulent  grantor;  and  it  must,  also,  be  prior  to  a  sale 
on  execution,  at  the  suit  of  the  creditor."  P.  532.  The  Chief 
Justice  uses  the  word  voidable,  in  contradistinction  to  utterly 
void  for  all  purposes;  as  the  deed,  if  void  in  toto,  could  not 
have  the  effect  of  vesting  a  good  title  in  an  innocent  purchaser 
without  notice. 

The  case  of  Anderson  v.  Roberts^  is  principally  relied  on  by 

the  Vice  Chancellor,  in  Henriques  v.  Hone. 
[■^542]      *This  last  case  was  appealed  to  the  Chancellor,  and 

from  him  to  the  Court/  of  Errors,  in  both  of  which 
events,  the  decree  of  the  Yice  Chancellor  was  affirmed ;  but  for 
a  different  reason  from  the  one  chiefly  relied  on  by  the  Yice 
Chancellor.  The  Ch.  Justice,  in  delivering  the  opinion  of  the 
Court  of  Errors,  says:  "  The  Chancellor  confines  himself,  in  his 
opinion,  to  the  facts  of  the  case,  and  says:  'The  defendant, 
Hone,  having  assented  to  the  assignment  by  executing  the  same, 
(his  assent)  it  is  not  void  as  to  him.'  This  is  the  true  ground 
upon  which  the  decision  should  rest,  and  upon  this  ground  it 
cannot  be  controverted."  Hone  v.  Henriques,  13  Weud.  E. 
24:2.  Neither  the  Chancellor  nor  Court  of  Errors  adopted  the 
lea'al  principles  laid  down  by  the  Yice  Chancellor,  in  affirming 
the  decree. 

In  Austin  v.  Bell,  where  a  debtor  had  made  an  assignment 
for  the  benefit  of  creditors,  which  was  void  as  to  them,  in  con- 
sequence of  its  containing  objectionable  features,  it  was  held,  a 
judgment  creditor,  who  had  not  given  his  assent  to  the  assign- 
ment, might  take  out  execution,  and  levy  on  the  property  in 
possession  of  the  assignee,  and  sell  it  in  satisfaction  of  his  debt. 
That  case  is  like  the  one  before  the  Court,  with  this  exception; 
complainants,  instead  of  taking  out  execution  and  levying  on 
the  property  assigned  by  Clark  to  Dallee,  and  selling  it,  took  a 
mortgage  from  Clark  on  a  part  of  the  property  assigned,  for 
the  payment  of  their  judgment. 

If  property  fraudulently  conveyed  may  be  taken  and  sold  on 
execution,  by  a  creditor,  why  may  he  not  take  a  mortgage  on 
the  same  property  from  his  debtor,  for  the  security  of  his  debt? 

490 


FIRST  CIKCUIT,  MARCH,  1845.  543 

Fox  r.  Clark. 

It  seems  difHcult  to  assign  a  reason  why  lie  should  not.  Why 
drive  him  to  a  judgment  and  execution?  Why  not  allow  the 
fraudulent  debtor  to  repent,  and,  so  far  as  in  his  power, 
to  retrace  his  steps?  *Why  render  the  title  of  the  fraud-  [*543] 
ulent  grantee  more  secure,  by  fortifying  it  against  the 
assaults  of  creditors,  unless  they  are  made  from  a  particular 
quarter?  With  a  mortgage  from  a  fraudulent  grantor,  the 
creditor  is  in  as  good  a  position  to  test  the  validity  of  an  as- 
signment, with  a  fraudulent  grantee,  as  he  would  be  with  a 
judgment  and  execution  levied  on  the  same  property. 

It  is  said  it  will  enable  fraudulent  grantors  to  give  a  prefer- 
ence among  creditors,  after  a  suit  has  been  commenced  to  test 
the  validity  of  an  assignment.  This  is  true;  but  a  debtor  has 
a  right  to  prefer  one  creditor  to  another,  any  time  before  the 
latter  has  obtained  a  lien  on  the  debtor's  property  for  his  debt. 
It  not  unfrequently  occurs,  a  creditor  who  has  prosecuted  for 
his  debt,  when  on  the  point  of  obtaining  judgment,  is  met  with 
an  assignment  giving  other  creditors  a  preference  over  him. 
There  is  no  such  ground  for  complaint  in  the  present  case. 
The  mortgage  from  Clark  to  complainants  was  executed  on 
August  20th,  1839;  and  the  Willises  did  not  file  their  bill  until 
October,  1840.  In  March,  1842,  they  obtained  a  decree,  declar- 
ing the  assignment  null  and  void,  and  appointing  a  receiver; 
who  sold  the  mortgaged  premises  at  public  auction,  to  the 
AVillises,  on  the  2d  of  August,  1842.  The  receiver,  and  the 
Willises,  as  purchasers  from  him,  took  the  premises  subject  to 
the  mortgage.  There  must  be  a  reference  to  a  Master  to 
ascertain  the  amount  due  on  the  mortgage,  and,  on  the  coming 
in  of  his  report,  the  usual  decree  must  be  entered. 


491 


4M  CASES  IN  CHANCERY 


Webb  V.  William. 


[♦544]  ^Pascal  D.   Webb  v.  Israel  Williams   and 
Elizabeth  Ann,  his  Wife,  Edwaed  Wilmot> 
Maetha  Wilmot,  and  Maky  C.  Wilmot. 

Where  W.  W.  gave  a  mortgage  on  land,  and  the  mortgage  was  foreclosed  at 
law  by  advertisement  and  sale  under  the  statute,  but,  before  the  redemp- 
tion expired,  he  died,  leaving  a  widow,  who  sold  the  land  to  P.  D.  W.  by 
a  warranty  deed,  in  consideration  of  his  paying  her  $25  and  what  was  due 
on  the  mortgage;  and  P.  D.  W.  redeemed  the  land  under  the  mortgage 
sale,  by  paying  what  was  due,  and  the  heirs  of  W.  W.  afterwards  brought 
an  action  of  ejectment  against  P.  D.  W.  to  recover  possession  of  the  land; 
it  u'as  held,  he  had  a  Uen  on  the  land  for  the  redemption  money  paid  by 
him,  with  interest,  less  the  use  and  occupation  of  the  premises  over  and 
above  improvements.^ 

William  Wilmot,  deceased,  in  his  lifetime,  being  seized  of 
two  equal  undivided  third  parts  of  the  W.  half  of  N.  E.  quar- 
ter of  section  19,  T.  1  S.,  E.  6  E.,  on  the  8th  day  of  February 
1831,  mortgaged  the  same  to  Stephen  Goodman  for  $200, 
Goodman,  in  July,  1832,  assigned  the  mortgage  to  Mrs.  Ful- 
ler as  security  for  $127.  In  November  of  the  same  year,  Wil- 
mot exchanged  the  land  with  Joseph  Gillett,  for  two  equal  un- 
divided third  parts  of  the  W.  half  of  S.  E.  quarter  of  section 
7,  in  the  same  town;  and,  to  enable  him  to  make  a  good  title 
to  Gillett,  it  was  agreed  the  mortgage  should  be  transferred 
from  the  land  on  section  19,  to  the  land  on  section  7,  and 
Mrs.  Fuller  acknowledged  satisfaction  of  the  mortgage  on  sec- 
tion 19;  when  a  new  mortgage  of  tlie  land  on  section  7  was 
executed  by  Wihnot  to  Goodman,  who  assigned  it  to  Mrs- 
Fuller  as  security  as  aforesaid.  Goodman  afterwards  parted 
with  his  entire  interest  in  the  mortgage  to  Mrs.  Fuller, 
who  foreclosed  it  by  advertisement  and  sale  under  the  statute, 
and  became  herself  the  purchaser,  and  received  a  certi- 
ficate from  the  sheriff  for  a  deed,  at  the  expira- 
[*545]  tion  *of  two  years,  unless  the  land  was  redeemed  within 

'  See  Johnson  v.  Johnson,  a7ite,  33L 
492 


SECOND  CIRCUIT,  MARCH,  lS-15.  54C 

Webb  V.  Williams, 


that  time.  "Wilmot  soon  after  died  intestate,  leaving  Mary 
Ann  Wilmot,  his  widow,  who,  a  few  days  before  the  re- 
demption expired,  sold  the  land  to  "SVehl),  and  executed  a  war- 
ranty deed  of  it  to  him,  in  consideration  of  what  was  due  to 
Mrs,  Fuller  on  the  mortgage  foreclosure,  which  was  ])ai<l  by 
Webb,  and  of  $25  paid  to  herself.  In  1842,  defendants,  who  are 
tlie  heirs  at  law  of  William  Wilmot,  deceased,  brought  an  action 
of  ejectment  against  Webb  for  the  land,  and  recovered  a  verdict 
in  their  fav^or;  when  complainant  Hied  his  bill  in  this  Court, 
stating  the  loss  of  the  mortgage,  and  that  it  had  not  been  re- 
corded, and  that  he  could  not,  on  that  account,  make  out  his 
defense  at  law;  and  averring  that  the  payment  to  Mrs.  Euller 
was  a  purchase  of  her  interest  under  the  mortgage  sale,  &c.; 
and  praying  defendants  might  release,  or  be  decreed  to  repay 
him  what  he  had  paid  Mrs.  Fuller.  The  answer  denied  most 
of  the  statements  of  the  bill;  and  testimony  was  taken  on  both 
sides,  which  it  is  unnecessary  to  state. 

0.  Hawkins,  for  complainant. 

J.  Allen,  for  defendants. 

The  Chancellor.  I  have  no  doubt,  from  the  testimony,  the 
Goodman  mortgage  was  changed  from  the  W.  half  of  N.  E. 
quarter  of  section  19,  T.  4  S.,  R.  6  E.,  to  the  W.  half  of  S.  E. 
(puirter  of  section  7,  in  the  same  town,  when  complainant  and 
William  Wihnot  exchanged  lots.  Goodman  is  undoubtedly 
mistaken  in  his  evidence.  No  one,  I  tliiiik,  can  read  over  the 
testimony,  without  coming  to  this  conclusion. 

But  the  money  paid  by  complainant  to  Mrs.  Fuller  was  in 
discharge  of  the  mortgage,  and  to  redeem  the  premises  from 
the  effect  of  the  statutory  foreclosure;  and  not  for 
*her  interest  as  purchaser  at  the  morgage  sale.  Com-  [*546] 
plainant  supposed,  by  purchasing  the  lot  of  Mrs.  AVilmot, 
after  the  death  of  her  husband,  and  taking  a  deed  from  her, 
and  redeeming  imder  the  mortgage  sale,  he  would  acquire  a 
good  title.     In  this  he  was  mistaken.     She  liad  no  interest  to 

493 


t)4< 


CASES  IN  CHANCEEY. 


Webb  t\  Williams. 


convey,  save  her  right  of  dower,  whicli  alone  passed  by  the  deed. 
On  the  death  of  her  husband,  the  equity  of  redemption  descen- 
ded to  his  heirs,  the  defendants,  subject  to  her  right  of  dower. 
But  that  complainant  and  Mrs.  Wilmot  at  tlie  time  supposed 
the  one  was  purchasing,  and  the  other  selling,  an  estate  in  fee 
simple,  is  evident  from  the  conveyance  itself,  which  is  a  war- 
rant}^ deed,  and  purports  on  its  face  to  convey  an  absolute  estate 
of  inheritance. 

"Whether  the  mistake  is  one  of  law  or  fact  is  wholly  immate- 
rial, so  far  as  the  present  case  is  concerned.  For,  conceding  it 
to  be  a  mistake  of  law,  defendants,  as  heirs  of  Mr.  Wilmot, 
under  whom  they  claim,  are  strangers  to  the  transaction  in 
which  the  mistake  occurred,  and  cannot,  therefore,  claim  any 
benefit  from  it;  and,  as  heirs  of  Mrs.  Wilmot,  this  Court  will 
not  permit  them  to  reap  any  advantage  from  the  mistake,  with- 
out keeping  good  her  covenant  of  warranty. 

By  giving  complainant  a  lien  on  the  land,  for  what  he  paid 
to  Mrs.  Fuller,  no  injury  is  done  to  defendants.  The  money 
was  paid  to  discharge  a  mortgage  given  by  their  father,  after  a 
statutory  foreclosure  of  the  mortgage,  and  before  the  time  of 
redemption  had  expired.  Had  the  mistake  not  occurred,  they 
would  have  lost  all  interest  in  the  land  at  that  time;  but,  as  it 
is,  they  still  have  the  right  of  redemption.  To  ask  more  is 
manifestly  unjust. 

In  Bingham  v.  Bingham,  1  Yes.  Sen.  R.  126,  complainant 

having  purchased  an  estate  of  defendant,  which  it  after- 
['•^54:7]  wards  appeared  belonged  toliim  at  the  time  of  the*pur- 

chase,  defendant  was  decreed  to  return  the  purchase 
money,  with  interest  from  the  time  of  filing  the  bill.  The 
cancellation  of  a  deed,  under  a  mistake  as  to  the  legal  effect  of 
a  will  subsequently  executed,  will  be  relieved  against.  Per- 
rott  v,  Perrott,  14  East  R.  423.  Why  not  the  cancellation  of 
a  mortgage,  the  party  procuring  it  supposing  he  had  a  good 
title  to  the  land  under  a  deed  executed  at  the  time  ?  Lord 
Ellenborough,  C.  J.,  in  delivering  the  opinion  of  the  Court  in 
Perrott  v.  Perrott,  says  :  "  Mrs.  Territt  mistook  either  the 
contents  of  her  will,  which  would  be  a  mistake  in  fact;  or  its 

494 


SECOND   CIRCUIT,  MAPwCII,  1845. 


Webb  V.  Williams. 


legal  operation,  which  would  be  a  mistake  in  law  ;  and  in 
either  case,  we  think  the  mistake  annulled  the  cancellation. 
Onions  v.  Tyrer,  1  P.  AVins.  345,  and  2  Vern.  742,  is  a  strong 
authority  that  a  mistake  in  point  of  law  may  destroy  the  eft'ect 
of  a  cancellation.  And,  when  once  it  is  established,  as  it  clearly 
is,  that  a  mistake  in  point  of  fact  may  also  destroy  it,  it  seems 
dithcult  upon  principle  to  say  that  a  mistake  in  point  of  law, 
clearly  evidenced  by  wliat  occurs  at  the  time  of  cancelling, 
should  not  have  the  same  operation." 

Defendants  must  be  restrained  from  proceeding  at  law  to 
recover  possession  of  the  land  ;  and  there  must  be  a  reference 
to  a  Master  to  ascertain  what  is  due  complainant  for  redemp- 
tion money  paid  by  him,  with  interest,  less  the  use  and  occu- 
pation of  the  premises,  over  and  above  all  permanent  improve- 
ments made  by  complainant,  and  Mrs.  Wilmot's  right  of 
dower  durins:  her  life. 


4'j:, 


INDEX. 


ACKNOWLEDGMENT. 

Where  the  certificate  of  the  acknowledgment  of  femes  covert  to  a  mortgage 
subsequent  to  the  act  of  1840,  declared  that  they  executed  it  without  fear 
or  compulsion  of  their  husbands,  it  teas  held,  that  such  certificate  was  no 
evidence,  either  in  law  or  equity,  of  such  an  acknowledgment  by  them  as 
the  act  of  1840  requires,  to  bar  their  right  of  dower.    Barstow  v.  Smith,  394 

ADMINISTRATOR. 

1.  Where  the  person  who  executed  a  trust  deed  for  the  benefit  of  his  creditors, 
offered,  as  administrator,  to  prove  a  debt  due  from  him  to  the  estate,  held, 
that  it  was  incompetent  for  him  to  do  so;  but  that  the  next  of  kin  of  the 
deceased,  or  others  entitled  to  the  money  due  from  him  as  administrator, 
might  come  in  and  claim  under  such  deed,  as  his  individual  creditors. 
Suydam  v.  Dequindre,  '  23 

2.  An  administrator  appointed  in  another  State  has  no  interest  in  the  real  or 
personal  property  of  his  intestate  here.  Nor  has  an  administrator  appoint- 
ed in  this  State  any  interest  in,  or  authority  over,  real  estate,  unless  the  per- 
sonal property  of  the  deceased  is  insufficient  to  pay  his  debts,  and  then  he 
can  only  dispose  of  it  after  express  permission  given  by  the  judge  of  pro- 
bate, on  application  made  for  that  purpose.     Thmjer  v.  Lane,  200 

8.  Where  an  estate  had  been  represented  insolvent  by  an  administrator  de  bonis 
non,  a  motion  w^as  gi-anted  stajnug  proceedings  on  execution,  for  balances 
due  on  certain  mortgage  foreclosures,  (not  being  such  debts  as  are  pre- 
ferred by  law,)  which  had  been  levied  before  such  representation  of  insol- 
vency.    Quackenbush  v.  Campbell,  adm.  dr.,  525 

4.  It  is  immaterial  whether  the  estate  be  represented  insolvent  by  the  original 
administrator,  or  the  administrator  de  bonis  non;  the  pro-\nsions  of  the 
statute  applying  to  the  former,  apply  also  to  the  latter,  where  there  is  no 
express  provision  to  the  contraiy.    Id.,  525 

Vol.  I.— 32  497 


550  INDEX. 

ADMINISTRATOR.— Con^inMerf. 

5.  No  time  is  limited  by  statute,  within  which  an  estate  must  be  declared  insol- 
vent by  an  executor  or  administrator.    Id.,  525 

ADMISSIONS. 

1.  The  admissions  in  a  bill  or  answer,  to  be  conclusive  on  the  party  making 
them,  must  be  full  and  unequivocal.  They  must  not  be  inferred  from  other 
admissions,  unless  the  express  admission  is  so  closely  connected  with  the  on" 
to  be  infeiTed,  that  to  dispi-ove  the  latter  would  disprove  the  former. 
Schwarz  v.  Sears,  ]  9 

2.  Where  a  defendant  permits  a  bill  to  be  taken  as  confessed  against  him,  it 
is  an  admission  on  his  part  of  every  material  fact  stated  in  it.  Ward  v. 
Jetvett,  45 

See  Divorce,  1. 
ADVERSE  POSSESSION. 

Where  there  is  an  adverse  possession,  the  legal  title  cannot  pass  by  a  convey- 
ance from  a  person  out  of  possession.     Godfroy  v.  Disbrow,  260 

AGENCY. 

1 .  The  possession  of  State  property  by  the  authorized  agents  and  officers  of 
the  State,  is  the  possession  of  the  State.  Michigan  State  Bank  v.  HaKf- 
ings,  9 

2.  Equity  will  not  decree  the  specific  execution  of  a  written  contract  for  the  sale 
of  land  made  by  a  special  agent,  who  has  exceeded  his  authority. 
.ChaniherVm  v.  Darragh,  14!J 

3.  Neither  wiU  it  require  the  agent  to  convey  his  equitable  interest  in  the  land 
as  cestui  que  trust,  he  having  acted  only  as  the  agent  of  the  trustee  in  selling 
the  land,  although  the  contract  on  its  face,  does  not  disclose  the  agency; 
the  biU  charging  that  the  contract  was  made  by  him  as  the  agent  of  the 
trastee,  and  not  that  it  was  made  by  him  in  his  own  right.    Id.,  14!( 

4.  Where  an  agent,  acting  within  the  scope  of  his  authority,  does  a  thing  which, 

standing  alone  and  by  itself,  would  be  binding  on  his  principal,  and  at  the 
same  time  does  something  more,  which  he  was  not  authorized  to  do,  and 
the  two  are  not  so  interwoven  with  each  other  that  they  cannot  be  sepa- 
i-ated,  but  constitute  different  parts  of  the  same  contract,  that  which  the 
agent  was  authorized  to  do,  is  binding  on  his  principal,  and  that  only 
which  he  was  not  authorized  to  do,  is  void.  Hammond  v.  Michigan  State 
Bank,  214 

5.  A  person  who  deals  with  an  agent  is  bound  to  inquire  into  his  authoritj',  and 
ignorance  of  the  extent  of  the  agent's  authority,  is  no  excuse.     /(/.,       214 

6.  The  declarations  of  an  agent,  made  at  the  time  of  doing  an  act  within  the 

498 


INDEX.  551 

AGENCY.— Continued. 

scope  of  his  authority,  and  relating  to  the  subject  matter  of  the  act,  arc 
«.'viilence,  as  a  part  of  the  res  gesUe;  but  statements  subsequently  made  Viy 
him  are  not,  because  the  latter  are  made  without  authority,  and,  for  that 
reason,  stand  on  the  same  footing  with  the  declarations  of  another  per- 
son.    Benedict  v.  Denton,  y:{6 

7.  An  agent,  whether  of  the  public  or  of  individuals,  who  is  authorized  to  sell 
property  for  the  best  price  that  can  be  obtained  for  it,  cannot  become  the 
purchaser,  either  in  his  own  name  or  that  of  another,  whether  the  sale  be 
public  or  private.     Ingerson  v.  Starkweather,  346 

See  Evidence,  8.    Michigan  State  Bank,  1.    Mortgagee,  37. 

ALIMONY. 

1.  When  allowed.     Sawyer -v.  Sawyer,  note,  p.  T>.\ 

2.  In  a  suit  by  or  against  a  wife,  for  a  divorce,  if  she  have  no  separate  property 
of  her  own,  the  Court,  when  necessary,  on  petition,  will  grant  her  temporary 
alimony  pending  the  suit,  and  require  her  husband  to  advance  money  t<i 
enable  her  to  prosecute  her  suit,  or  make  her  defense.    Story  v.  Story,  4'Jl 

P..  Hie  atfidavit  of  the  husband,  denying  the  ground  on  which  the  wife  asks  a 
divorce,  is  no  answer  to  an  application  for  alimony  during  the  suit,  but 
may  be  read  to  aid  the  Court  in  the  exercise  of  its  discretion  as  to  the 
amount  to  be  allowed.    Id.,  421 

AMENDMENT. 
See  Practice,  III.  10,  11,  12,  13. 

ANSWER. 
See  Evidence,  10,  11.  12,  13.    Pleading,  V.    Practice,  V. 

APPEAL. 

The  right  of  appeal  is  a  statutory  right,  and,  where  a  party  has  failed  to  com- 
ply with  the  provisions  of  the  statute,  -\\'ithin  the  time  prescribed,  the  Court 
will  not  allow  a  re-entry  of  the  decree  to  enable  him  to  appeal.  Weed  v. 
Lyon,  77 

ASSIGNMENT. 

1.  The  assignment  of  a  debt  secured  by  a  mortgage,  carries  with  it  the  mort- 
gage, as  an  incident  to  the  debt,  although  there  is  no  mention  made  of  the 
mortgage  in  the  assignment.  So,  the  assignment  of  a  part  of  a  debt,  or 
of  one  of  several  notes  secured  by  a  mortgage,  carries  with  it  a  propor- 
tional interest  in  the  mortgage,  unless  it  is  agreed  between  the  parties,  at 

499 


552  INDEX. 

ASSIGI^ME'^T.— Continued. 

the  time,  that  no  interest  in  the  mortgage  is  to  pass  to  the  assignee. 
Cooper  r.  Uhnann,  251 

2.  Where  there  are  several  notes  falling  due  at  different  times,  the  fact  that  one 

note  becomes  due  first,  will  not,  of  itself,  give  it  a  preference  over  the 
rest,  where  the  mortgaged  premises  are  insufficient  to  pay  the  whole. 
Id.,  251 

3.  The  assignor  may,  if  he  see  fit,  give  the  assignee  a  priority  of  payment;  but 
the  law  gives  no  such  priority,  where  there  is  no  understanding  or  agree- 
ment between  the  parties  to  that  effect.     Id.,  251 

4.  An  assignee  of  a  contract  cannot  insist  upon  fraud  used  in  the  making  of  the 
conti'act  on  the  party  under  whom  he  claims.     Carroll  v.  Potter,  355 

•*>.  Where  an  assignment  of  a  debt  is  made  to  defraud  creditors,  they  only  can 
take  advantage  of  the  fraud  to  set  it  aside,  and  it  is  good  against  all 
others;  and  the  debtor  cannot  set  it  up  as  a  defense  to  a  suit  by  the 
assignee.     Morey  v.  Forsyth,  465 

See  Judgment  Creditor's  Bill,  22,  23  26;  Mortgage,  III. 
BANK. 

1.  Where  the  charter  of  a  bank  prohibited  the  discounting  of  notes  for  stock- 
holders to  pay  installments  on  their  stock,  and  a  note  for  $70,000  and  a 
certificate  of  deposit  on  which  $12,000  was  due,  were  discounted  to  enable 
an  individual  to  purchase  a  controlling  interest  in  the  bank,  and  to  pay  the 
balance  due  the  bank  on  the  stock  purchased  by  him,  and  a  bill  was  filed 
to  restrain  a  suit  brought  by  the  bank  on  the  note,  and  to  have  the  note 
and  certificate  given  up  and  canceled;  upon  demurrer  it  was  held,  that 
the  bill  should  not  be  sustained,  and  that  the  parties  should  be  left  to  their 
remedy  at  law.     Welles  v.  Eiver  Baism  and  Grand  River  E.  R.  Co.,     35 

2.  Where  a  bank  had  power  under  its  charter  to  take  and  hold  lands  for  the  con- 

venient transaction  of  its  business,  and  to  secure  debts,  but  for  no  other 
purpose,  it  teas  held,  it  had  no  right  to  purchase  lands  for  the  purpose  of 
selling  them  again;  and  the  Court  refused  to  assist  it  in  enforcing  a  ccntract 
made  with  that  intent.     Bank  of  Michigan  v.  Niles,  99 

3.  A  purchase  after  the  contract  was  made,  in  part  performance  of  it,  will 
not  change  the  case.     Id.,  99 

4.  A  bank  may  take  a  mortgage  for  a  debt  due  to  it,  with  seven  per  cent,  inter- 
est, (that  being  the  legal  rate  of  interest,)  notwithstanding  it  is  prohibited 
by  its  charter  ft-om  taking  "more  than  six  per  cent,  per  annum  in  advance, 
on  its  loans  or  discounts.''''     Bailey  v.  Murphy,  424 

See  Corporation,  3,  4.    Michigan  State  Bank,  1,  2. 

600 


INDEX,  553 

BILL. 

See  Pleading,  IL     Pkactice,  II,  6;  III. 

COMPROMISE. 

Where  two  parties  claim  the  same  land  under  conflicting  titles,  and  there  is 
a  doubt  as  to  which  title  is  vahd,  tliat  fact  is  sufficientconsiderationfor  an 
agreement  to  compromise  and  divide  the  land;  and  a  specific  performance 
of  such  agreement,  though  not  in  wi-iting,  will  be  decreed,  where  the 
part}^  seeking  it  has  acted  lairly,  and  there  has  been  a  part  performance  to 
take  it  out  of  the  statute  of  frauds.     Weed  v.  Terri/,  501 

CONDITION. 

1.  Where  time  has  been  extended  for  the  performance  of  conditions,  a  party 
seeking  to  avail  himself  of  the  extension,  must  allege  a  readiness  to  per- 
form within  the  time  as  extended,  and  notice  thereof.  Trowbridge  v. 
Harleston,  IS-"* 

2.  A  court  of  equity  may  relieve  against  the  breach  of  a  condition  precedent  in 
the  nature  of  a  penalty;  and  there  is  no  good  reason  why  it  should  not  re- 
lieve against  the  breach  of  a  condition  precedent,  when  it  would  against  a 
condition  subsequent.     Chipman  v.  Thompson,  40-t 

3.  The  substantial  difference  wliich  governs  courts  of  equity,  in  cases  of  condi- 
tions, is  not  whether  the  condition  be  precedent  or  subsequent,  but  whether 
a  compensation  can,  or  cannot  be  made.    Id.,  405 

4.  The  Court  is  not  bound,  in  all  cases  where  a  compensation  can  be  made,  to 
give  relief;  for  the  party  seeking  relief  may  have  so  conducted  himself  as 
to  have  lost  all  claim  to  its  interposition;  but  w^hen  this  is  not  the  case, 
and  it  is  equitable  under  the  circumstances  that  relief  should  be  given,  it 
is  competent  for  the  Court  to  give  it.     Id.,  405 

CONSTRUCTION. 

1.  Contracts  are  to  be  construed  according  to  the  intention  of  the  parties,  as 
expressed  in  them.      Bronson  v.  Green,  56 

2.  Where  several  contracts  are  executed  by  the  same  parties  at  the  same  time, 
and  relating  to  the  same  matter,  they  are  to  be  construed  together.  Id.,  56 

3.  Where  one  writing  refers  to  another,  the  intention  of  the  parties  is  to  be 
gathered  from  the  two  construed  together.     Id.,  56 

4.  Where  one  contract  grows  out  of  another  to  which  it  refers,  and  both  are  in 
writing,  the  first  may  be  looked  into  to  ascertain  the  intention  of  the  par- 
ties in  the  latter,  if  it  is  not  clearly  expressed  therein.     Id.,  56 

5.  Pnltlic  grants  are  to  be  construed  strictly,  find  nothing  passes  under  them  by 
implication.     La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe,  155 

501 


554  INDEX. 

CONSTRUCTION,— Co«<iHitefZ. 

6.  lu  construing  an  instrument,  the  whole  of  it  should  be  considered,  and  a 
construction  of  a  detached  part,  without  reference  to  the  rest,  is  erroneous. 
Xorris  v.  Showerman,  206 

7.  An  agreement  by  a  lessee  in  a  memorandum  signed  by  him  at  the  foot  of  the 
lease,  before  it  was  assigned,  constitutes  a  part  of  the  lease.     Id.,         206 

8 .  Where  water  was  leased  in  the  following  words :  '  'The  right  and  privilege  of 
drawing  from  the  west  side  of  a  race  now  making  by  the  said  party  of  the 
first  part,  in  Ypsilanti  aforesaid,  and  leading  to  his  new  saw-mill,  at  any 
place  withia  sixteen  rods  from  the  head-gate  of  said  race,  as  much  water 
as  will  run  through  an  aperture  of  two  feet  square,  under  a  head  of  four 
feet  from  the  top  of  said  aperture,"  &c.,  it  teas  held,  the  words  "  under 
a  head  of  four  feet  from  the  top  of  said  aperture, ' '  must  be  construed  as 
referring  to  the  location  of  the  aperture,  and  not  to  the  quantity  of  water 
leased;  and  that  the  lessee  was  entitled  to  as  much  water  as  he  could  take 
through  an  aperture  two  feet  square,  made  in  the  side  of  the  race,  not 
lower  down  than  four  feet  below  the  surface  of  the  water  in  the  race;  and 
not  to  as  much  water  as  would  pass  into  space,  through  such  an  aperture, 
under  a  head  of  four  feet  above  the  top  of  the  aperture.    Id.,  206 

9.  The  intention  of  parties  to  an  instrument,  when  that  intention  is  apparent 
from  the  whole  instrument,  and  not  repugnant  to  any  rule  of  law,  will 
control  the  meaning  of  a  particular  word  or  phrase,  unguardedly  used, 
and  seeming  to  indicate  a  different  intention.     Bird  v.  Hamilton,         361 

10.  It  is  the  intention  of  parties,  rather  than  the  language  employed  to  express 
their  intention,  that  courts  cliiefly  regard.     Id.,  361 

11.  The  Court  must  judge  of  the  intent  of  the  legislature,  from  the  language 
used  to  express  that  intent;  and  where  the  language  is  clear  and  explicit, 
and  susceptible  of  but  one  meaning,  and  there  is  nothing  incongruous  in 
the  act,  the  Court  is  bound  to  suppose  the  legislature  intended  what  their 
language  imports.     Barstow  v.  Smith,  394 

See  Guardian  and  Ward,  1.  Lands  and  Land  Titles,  1,  2, 4,  5.  Mich- 
igan State  Bank,  1.  Mortgage,  36,  37,  38.  Navigable  Waters,  1, 
2.     Ordinance  of  1787,  1,  2,  3.    Registry,  2,  3. 

CORPORATION. 

1.  The  Legislative  Council  of  the  Territory  of  Michigan  had  power  to  pass  acts 
of  incorporation,  which  were  valid  until  disapproved  by  Congress.    Mer- 

■  cer  V.  Williams,  85 

2.  Where  a  railroad  company  had,  in  good  faith,  obtained  an  assessment  of 
damages  by  a  jury,  on  land  which  was  necessary  for  their  road,  long 
before  they  wanted  the  use  of  it,  and  afterwards,  when  any  delay  would 
have  been  injurious  to  them,  and  while  the  confirmation  of  the  inquisition 
was  still  pending  in  the  Supreme  Court,  to  which  it  had  been  reserved, 
had  tendered  the  damages  assessed,  and  proceeded  to  use  the  land,  the 

502 


INDEX.  555 

CORPORATION.— CoH^/jiMf^. 

Court,  under  the  circumstanceb,  refused  to  enjoin  them  from  constructing 
the  road  upon  it,  although  the  inquisition  was  not  vahd  until  confinned; 
inasmuch  as  they  could  only  be  delayed,  and  could  not  be  prevented  from 
finally  obtaining  the  land.     Id.,  •  85 

3'  Corporations  have  such  powers  and  capacities  as  are  given  to  them,  and  none 
other;  and  every  abuse  of  such  powers  is  a  violation  of  the  law  of  their 
being,  and  a  forfeiture  of  their  franchises.  The  establishment  of  an 
agency  or  office  at  a  place  not  authorized  by  the  charter,  was  held  to  be  a 
violation  of  it.     Attornetj  General  v.  Oakland  County  Bank,  90 

4  Under  the  actof  June2I,  18o7,  this  Court  has  jurisdiction  over  banking  cor- 
porations to  restrain  them  by  injunttion  from  exercising  their  corporate 
powers,  to  appoint  a  receiver  to  take  charge  of  their  assets,  and  to  decree 
their  dissolution,  in  the  following  cases :  1st.  When  the  corporation  is  in- 
solvent. ■  2d.  When  it  refuses  to  pay  its  debts.  3d.  When  it  has  vio- 
lated any  provision  of  its  charter,  or  of  any  law  binding  on  it.    Id.,        90 

5.  The  seal  of  a  corporation  is,  itself,  prima  facie  evidence  that  it  was  affixed  by 
proper  authority,  and  the  contrary  must  be  shown  by  the  objecting  party. 
Benedict  v.  Denton.  336 

COSTS. 

1 .  Where  complainant  was  compelled  by  the  improper  conduct  of  the  defend- 
ant, and  without  fault  of  his  own,  to  come  into  Court  for  a  settlement  of  part- 
nership accounts,  he  was  held  entitled  to  costs.     Ward  v.  Jcwetf,  45 

2.  Rule  for  computing  costs  and  commissions  on  mortgage  sales  laid  down. 
Hart  V.  Linsdai/,  72 

3.  It  is  the  tormination]of  the  suit  which  entitles  one  party  to  costs  against  the 
other,  and  the  law  then  in  existence,  is  the  rule  by  which  they  are  to  be 
ascertained.  A  different  rule  prevails  between  attorney  and  client.  Saw- 
yer v.  Studley,  153 

4.  Affidavits  are  required  in  certain  cases,  before  taxation  of  costs.     Id.,  153 

5.  Rules  of  practice  regulating  the  mode  of  applying  for  re-taxation  of  costs, 
and  for  setting  aside  the  taxation  for  irregularity.     Reeves  v.  Scully,     340 

See  Practice,  7,  9. 

CROSS  BILL. 

See  Pleading,  30. 

DATE. 

Whore  a  date  is  given,  both  as  a  day  of  the  week  and  a  day  of  the  month,  and 
the  two  are  inconsistent,  the  day  of  the  month  must  govern.  Inyersoll  v. 
Kirhy,  27 

503 


556  INDEX. 

DEBTOR  AND  CREDITOR. 

1.  A  debt  due  to  two  or  more  persons  jointly,  on  the  death  of  any  of  them, 
passes  to  the  survivor  or  survivors,  and  not  to  the  personal  representatives 
of  the  decease"d.     Cote  v.  Dequindre,  64 

2.  A  debtor  has  a  right  to  prefer  one  creditor  or  class  of  creditors  to  another, 
and  on  assigning  his  property  for  the  benefit  of  creditoi-s,  may  lawfully  re- 
quire a  particular  creditor  or  class  of  creditors  to  be  paid  in  full,  although 
his  other  creditors,  in  consequence  thereof,  may  not  receive  anything. 
How  v.  Camp,  427 

3.  A  creditor  may  extend  the  time  for  his  debtor  to  pay  in,  without  discharg- 
ing the  sureties,  if  he,  by  the  same  agreement,  in  express  terms,  reserves 
his  remedy  against  them.    Bailey  v.  Gould,  478 

4.  A  deed  made  to  defraud  creditors  is  void,  and  does  not,  as  against  them, 
divest  the  fraudulent  grantor  of  his  title,  before  the  property  has  been 
conveyed  by  the  fraudulent  grantee,  for  a  valuable  consideration,  to  a  third 
person,  without  notice  of  the  fraud;  when  the  deed  becomes  operative 
against  creditors,  for  the  purpose  of  protecting  the  innocent  purchaser,  and 
vesting  the  title  in  him.     Fox  v.  Clark,  635 

See  Assignment,  5.    Fraud,  10,  11.    Judgment  Creditor's  Bill. 

DECREE. 

See  Practice,  IV. 

DEED. 

A  deed  executed  without  a  witness,  is  good  in  equity  as  a  contract  for  the  sale, 
of  land,  and  may  be  enforced  as  such.     Godfroy  v.  Dishrow,  260 

See  Fraud,  11.    Registry,  2,  4. 

DEFAULT. 

See  Practice,  IV. 

DEMURRER. 

See  Pleading,  III. 

DIVORCE.^ 

1.  Divorce  will  not  be  granted  upon  the  admissions  of  a  party  unsupported  by 
evidence,  but  the  amount  of  evidence  required  varies  with  the  danger  of 
collusion.     Sawyer  v.  Sawyer,  48 

2.  Sentence  to  hard  labor  in  any  prison,  jail,  or  house  of  correction,  for  three  or 

504 


INDEX.  557 

DIYORCE— Com  Imicd. 

more  years,  is  a  good  ground  of  divorce  under  the   statute.    Johnson  v. 
Johnson,  oOiJ 

3.  Upon  the  dissolution  of  a  marriage  by  divorce,  or  sentence  of  nullity,  for  any 
cause  excepting  adultery  of  the  wife,  she  is  entitled  to  the  immediate  pos- 
session of  all  her  real  estate,  in  the  same  manner  as  if  her  husVjand  were 
dead.    Id.,  -  309 

See  Alimony,  1,  2,  3.    Pkactice,  43,  44. 
ELECTION. 

1.  Where  complainant  filed  his  bill  in  this  Court  forrelief  against  a  judgment 
at  law,  and  subsequently  sued  out  a  writ  of  error  to  the  Supreme  Court  on 
the  judgment,  an  order  was  granted  compelling  him  to  elect  in  which 
Court  he  would  proceed.    Webb  v.  Williams,  452 

2.  On  a  motion  to  compel  a  complainant  to  elect  between  prosecuting  his  suit  in 
this  Court,  and  proceeding  on  a  wi-it  of  error  in  the  Supreme  Court,  for  re- 
lief against  a  judgment  at  law,  it  is  not  necessary  to  serve  a  copy  of  the 
proceedings  in  the  Supreme  Court,  with  the  notice  of  the  motion.   Id.,  452 

EQUITY,  PRIORITY  OF. 

1.  Where  the  equities  of  parties  are  equal,  and  neither  has  the  legal  title,  the 
prior  equity  will  prevail.  Nor  wiU  a  subsequent  obtaining  of  the  legal 
title  in  right  of  another  and  not  in  one's  own  right,  or  with  notice  of  the 
prior  equity,  aid  the  holder  of  the  postponed  equity.  Wing  v.  McDow- 
ell, 175 

2.  Where  equities 'are  equal,  and  neither  party  has  the  legal  title,  or  the  legal 
title  has  been  procured  with  a  knowledge  of  the  prior  equity,  the  party  who 
has  the  prior  equity  must  prevail.    Notris  v.  Showermun,  206 

EVIDENCE. 

1 .  If  the  allegations  in  a  bill  are  sufficiently  clear  and  positive  to  establish  a  fact 
without  proof,  it  need  not  be  adduced;  otherwise,  where  they  are  vague 
and  indefinite.     Ward  v.  Jewett,  45 

2.  A  witness  is  presumed  to  be  competent  until  the  contrary  is  shown.  Nor- 
ris  V.  Ilurd,  102 

3.  Where  a  defendant,  against  whom  a  decree  was  sought,  was  examined  as  a 
\vitness,  his  deposition  was  suppi-essed;  and  it  Avas  held,  that  the  examin- 
ation did  not  operate  as  a  release,  but  that  a  decree  might  still  be  had 
against  him,  if  warranted  by  other  evidence.     Id.,  102 

4.  A  complainant  cannot  examine  as  a  witness  a  defendant  against  whom  he 
seeks  relief;  if  his  answer  is  insufficient  complainant  should  except,  and  if 
his  testimony  is  sought  to  facts  not  stated  in  the  bill,  it  should  be 
amended.     Thomas  \.  Graham,  117 

505 


558  INDEX. 

EVIDENCE— CoH^i««ef7. 

5.  The  reservations  of  certain  lands  in  the  treaty  of  Saginaw  are  public  dona- 
tions, made  by  the  Chippewa  nation  to  individuals;  and,  where  two  persons 
of  the  same  name  claim  a  particular  reservation,  hearsay  evidence  is  admis- 
sible to  show  for  whom  it  was  intended.  General  hearsay  or  public  repu- 
tation at  the  time  of  the  treaty  among  the  Indians  and  those  present  at  it, 
and  among  the  Indians  since  that  time  and  before  any  controversy  arose, 
is  good  evidence  for  that  purpose;  so  is  evidence  of  what  a  person  has 
said  before  such  controversy  arose,  who  was  present  at  the  treaty,  and 
would  be  likely  from  the  circumstances  to  know  for  whom  the  donation 
was  intended,  and  is  dead.  But  evidence  of  the  declarations  of  a  living 
person  under  such  circumstances  cannot  be  received.  Stockton  v.  Wil- 
liams, 120 

6.  What  a  witness  has  heard  post  litem  tnotam,  (by  which  is  meant  since  the 
dispute  has  arisen,  and  not  merely  the  commencement  of  suit,)  is  not 
evidence.    Id.,  120 

7.  Where  the  register  of  deeds  had  received  a  check  from  complainant,  in  re- 
demption of  mortgaged  premises,  and  given  him  ai-eceipt  for  the  same,  as 
money,  on  behalf  of  defendant,  who  was  the  purchaser  at  the  mortgage 
sale,  he  was  held  to  be  a  competent  witness  for  either  party,  as  being 
equally  liable  to  both.    Woodbury  v.  Lewis,  256 

8.  The  receipt  of  the  register  of  deeds  is  not  conclusive  evidence  of  the  payment 
of  redemj)tion  money,  as  against  a  purchaser.    Id.,  256 

9.  The  fact  that  a  mortgage  for  purchase  money,  given  at  the  time  the  convey- 
ance was  made,  was  executed  with  all  proper  formality,  raises  the  pre- 
sumption that  the  deed  (which  in  this  case,  had  been  lost,  unrecorded ) 
was  likewise  properly  executed.     Godfroy  v.  Disbrow,  260 

10.  The  general  rule  is,  that  whatever  is  responsive  to  the  bill  is  evidence  for, 
as  weU  as  against  the  defendant.     Schwarz  v.  Wendell,  267 

11.  If  a  fact  stated  in  the  bill,  and  answered  by  defendant,  is  material  to  com- 
plainant's case,  or  is  a  circumstance  from  which  a  material  fact  may  be  in- 
ferred, the  answer,  in  such  case,  is  responsive  to  the  bill,  and  is  evidence  in 
the  cause.    Id.,  267 

12.  An  answer  may  sometimes  be  evidence  of  a  fact  not  stated  in  the  bill,  as 
when  the  bill  sets  forth  part  of  complainant's  case  only,  instead  of  the  whole, 
and  the  part  omitted,  and  stated  in  the  answer,  shows  a  different  case  from 
that  made  by  the  bill,  and  is  not  by  avoidance  merely.    Id.,  267 

13.  Where  an  answer  does  not  show  a  different  case  from  that  set  up  in  the 
bill,  but  sets  up  r_ew  matter  in  avoidance,  it  is  not  evidence  of  such  new 
matter.    Id.,  .  267 

14.  A  defendant  cannot,  by  his  answer,  vary  the  terms  of  a  written  contract. 
Id.,  267 

15.  A  bill,  filed  and  sworn  to  by  a  person  who  is  deceased,  is  evidence  against 
his  heirs  to  prove  what  might  be  proved  by  his  declarations.  Chipman  v. 
Thompson,  405 

506 


INDEX.  559 

EVIDENCE— Co;i^!7i«c(7.. 

IG.  Parol  evidence  cannot  be  received  to  add  to,  or  vary  the  terms  of  a  written 
instrument.  It  may  be  introduced  for  the  purpose  of  showinj^  fraud,  or 
a  mistake  in  drawing  the  instrument,  when  the  fraud  or  mistake  is  set 
forth  in  the  bill,  and  the  reUef  a-sked  is  based  upon  it;  but  not  otherwise. 
Sutherland  v.  Crane,  523 

See  Admissions,  1,  2.    ConrouAXiON,  5.    Divouce,   1.    Moktoaoe,   3. 

Practice,  37. 

EXECUTION. 

An  execution  may  be  levied  at  any  time  on  the  retuni  day,  and  the  execution 
of  the^writ  be  completed  by  a  sale  of  the  property  after  that  day. 

See  Judgment  Creditou's  Bill. 
FRAUD. 

1.  Where,  by  treaty  between  the  United  States  and  the  Ottawa  and  Chippewa 
Indians,  the  sum  of  $300,000  was  set  apart  to  pay  claims  against  the  In- 
diums, to  be  allowed  by  commissioners,  and,  E.  having  a  claim  against 
them,  H.  procured  its  allowance  to  himself  as  purchaser  of  the  claim,  when 
he  had  no  right  to  it,  and  received  the  money,  it  icas  held,  that  E.  could 
not  sustain  an  action  at  law  against  H.  for  the  money,  but  that  in  equity 
H.  would  be  considered  a  trustee  for  E.  to  whom  the  money  of  right  be- 
longed.   Edwards  v.  Uulhert,  54 

2.  Where  a  party  sold  land  for  which  other  land  was  given  in  part  payment, 
and  was  deceived  in  regard  to  tlie  latter,  the  bargain  was  set  aside  and  a  re- 
conveyance decreed.    Rood  v.  Chapin,  79 

3.  When  a  party  is  entitled  to  rescind  a  contract,  he  should  act  promptly  and 
not  sleep  on  his  rights,  or  take  time  to  speculate  on  the  course  of  events.  If 
he  goes  on,  with  a  full  knowledge  of  his  rights,  recognizing  the  contract 
as  still  in  force,  and,  by  his  acts  and  conduct,  tacitly  gives  his  assent  to  its 
execution  in  a  manner  different  from  the  original  understanding  of  the 
parties,  he  is  not  entitled,  in  equity,  to  have  either  the  contract  rescinJed, 
or  any  relief  inconsistent  Avith  what  may  fairly  and  reasonably  be  pre- 
sumed, from  his  own  acts,  to  have  been  assented  to  by  him.  De  Armand 
V.  Phillips,  1^6 

4.  ^Yllere  the  alleged  fraud  setup  in  defense  of  a  bill,  consists  of  a  variety  of  cir- 
cumstances, it  should  be  taken  advantage  of  by  answer,  and  not  by  plea. 
Carroll  v.  Potter,  335 

5.  Fraud  vitiates  all  contracts,  at  the  election  of  the  party  injured;  but  he  must 

make  his  election  on  the  discovery  of  it,  or  within  a  reasonable  time  there- 
after, whether  he  will  rescind  the  contract,  or  consider  it  good,  and  resort 
to  an  action  on  the  case  for  damages.     Carroll  v.  Rice,  373 

507 


560  IIS'DEX. 

FRAUD— Continued. 

6.  If  the  condition  of  the  pi-operty  has  been  so  changed  that  the  parties  cannot 
substantially  be  placed  back  where  they  were  before  the  sale,  the  vendee 
must  seek  redress  by  an  action  on  the  case.     Id.,  373 

7.  A  party  seeking  to  set  aside  a  conveyance  on  the  ground  of  fraud,  must  be 
prompt  in  communicating  the  fraud  when  discovered,  and  consistent  in 
his  notice  of  the  use  he  intends  to  make  of  it.     Id.,  373 

8.  In  a  suit  brought  to  set  aside  a  bond  and  mortgage  for  purchase  money,  on 
the  ground  of  fraud,  the  mortgagee  being  dead,  and  his  estate  insolvent 
unless  the  bond  should  be  paid,  the  Court,  although  it  refused,  under  the 
circumstances  of  the  case,  to  rescind  the  contract,  retained  jurisdiction 
under  the  general  prayer  of  the  bill,  on  the  ground  that  it  could  give 
more  full  relief  than  a  court  of  law,  and  awarded  an  issue  to  ascertain  the 
damage  which  complainant  had  sustained  by  reason  of  the  alleged  fraud. 
Id.,  373 

9.  The  denial  of  frand  by  a  defendant,  in  his  answer,  is  not  conclusive  upon  the 
Court,  if  the  facts  and  circumstances  of  the  case  are  such  as  irresistibly  to 
lead  the  mind  to  a  ditFerent  conclusion.  When  fraud  is  denied,  it  is  not  to 
be  inferred  from  slight  circumstances;  but  a  denial  of  it  does  not  preclude 
inquiry,  or  disarm  the  Court  of  its  power,  when,  from  the  pleadings  and 
proofs,  it  is  satisfied  of  its  existence.     Hoiv  v.  Camj),  427 

10.  Where  a  conveyance  was  actually  and  not  only  constructively  fraudulent, 
and  a  bill  was  filed  by  creditors  to  set  it  aside,  and  the  grantee  was  compelled 
to  account  for  moneys  received  by  him  out  of  the  property,  it  was  held 
that  he  should  be  credited  with  all  taxes  and  improvements  made  by  him, 
but  for  no  advances  made  to  his  grantor,  unless  the  monej'  was  used  by 
the  latter,  before  complainants  filed  their  bill,  to  pay  debts  due  from  him 
at  the  time  he  made  the  fraudulent  conveyance.    Id.,  427 

1 1 .  Where  a  deed  of  real  estate  was  taken  in  the  name  of  a  son  who  was  a 
minor,  to  keep  it  from  the  creditors  of  the  father,  and  it  was  afterwards  sold 
by  the  sheriff  on  an  execution  against  the  father,  the  son  was  decreed  to  re- 
lease to  the  purchasers  at  the  sheriff's  sale.     Cutter  v.  Griswold,  437 

See  Assignment,  4,  5.    Debtor  and  Creditor,  4.    Judgment  at  Law. 
Mortgage,  11,  12. 

GUARDIAN  AND  WARD. 

1.  A  petition  under  the  "Act  to  authorize  the  conveyance  of  real  estate  of 
minors  in  certain  cases,"  approved  February  28th,  1840,  should  set  forth 
fully  all  the  facts  and  circumstances  rendering  a  sale,  or  other  disposition 
of  the  minor's  property,  necessai-y;  that  the  Court  may  judge  of  the  neces- 
sity and  fitness  of  the  measure.     Dorr,  x>etMoner,  dx.,  145 

2.  A  guardian  should  not  make  an  absolute  sale  of  the  real  estate  of  his  wai'd. 
and  then  apply  to  the  Court  to  authorize  him  to  do  what  he  has  already 
bound  himself  to  do;  and  the  Court  will  not  ratify  such  agreements.    The 

5D8 


INDEX.  5G1 

GUARDIAN  AND  WARD.— Continued. 

proper  course  is  to  obtain  leave  of  the  Court  in  the  first  instance.    Id.,  145 

3.  No  decree  will  be  entered  against  an  infant  on  a  bill  taken  aj^ainst  him  as 
confessed,  or  on  the  answer  of  his  guardian  ad  litem,  admitting  the  fvicts* 
stated  in  the  bill.  The  answer,  in  such  case,  is  regardt'd  as  a  pleading 
merely,  and  cannot  be  used  as  evidence  for,  or  against,  the  infant,  against 
whom  the  complainant  must  prove  hia  case.     Jliayer  v.  Lane,  200 

4.  Where  money  wa>s  directed  to  be  paid  into  Court,  under  a  decree,  for  an  in- 
fant, and  her  guardian  accepted  a  deed  of  lands  in  lieu  thereof,  //  iras  held, 
that  it  was  not  binding  on  the  infant;  and  that  the  guardian  had  no  right 
to  receive  the  money,  much  less  land  in  lieu  of  it,  }Vestbrook  v.  Coin- 
stock,  314 

5.  This  Court  has  general  supervisory  power  over  the  persons  and  estates  of 
infants;  and,  when  any  part  of  an  infant's  estate  is  in  litigation  here, 
it  is  under  the  immediate  guardianship  and  protection  of  the  Court;  and, 
where  money  belonging  to  an  ijifant  is  ordered  to  be  paid  to  the  register, 
neither  the  guarLlian  ad  litem  nor  general  guardian  of  the  infant  has  any 
right  to  receive  it.     Id.,  314 

6.  Before  this  Court  will  order  money  to  be  paid  to  a  guardian,  it  must  be  satis- 
fied that  he  has  given  sufficient  security  for  the  performance  of  his  trust, 
and  that  he  has  not  abused  it.     Id.,  314 

HUSBAND  AND  WIFE. 

1.  A  legacy  to  a  married  woman  is  liable  to  an  attachment  issued  against 
her  husband;  but  the  attaching  creditor  must  take  it  subject  to  her  equity, 
which  is  to  have  the  whole,  or  so  much  as  the  Court  may  see  fit,  set  apart 
to  her  for  her  support.     WestbrooJc  v.  Comstock,  314 

2.  In  a  plea  that  one  of  the  defendants  is  a  married  woman,  and  her  husband 
is  not  a  party  to  the  suit,  it  is  not  necessai-y  to  show  by  the  plea  she  cannot 
sue  and  be  sued  as  an  unmarried  woman,  under  the  eighteenth  section  of 
chapter  four,  title  seven,  part  two,  of  the  re^•ised  statutes,  where  the  bill 
does  not  make  out  a  case  bringing  her  within  the  statute.  Parker  v.  Pa}- 
ker,  457 

3.  A  settlement  after  marriage,  on  a  wife,  of  property  belonging  to  her  before 
mamage,  in  pursuance  of  an  antenuptial  parol  agreement,  is  good  against 
creditors.     Wood  v.  Savage,  471 

4.  Where  the  property  was  money,  and  was  to  be  invested  by  the  husband, 
whenever  a  favorable  opportunity  offered,  in  the  purchase  of  real  estate  in 
the  wife's  name  and  for  her  benefit,  and  the  money  was  used  by  the  husband 
in  his  business  without  the  wife's  consent,  and  was  not  laid  out  in  pursu- 
ance of  the  agi'eement  until  after  the  expiration  of  two  years,  the  convey- 
ance to  the  wife  was  held  to  be  good  against  the  creditors  of  the  hus- 
band.    Id.,  471 

5.  All  voluntaiy  postnuptial  settlements  are  not  necessarily  bad.     They  are 

509 


5G2  INDEX. 

HUSBAND  AND  WIFE.— Continued. 

good  when  made  without  fraud,  by  a  party  not  indebted  at  the  time,  or 
whose  debts  are  trifling  compared  with  his  property.     Beachy.  White,  4^^) 

().  Conveyances  of  real  estate  made  after  mamage  for  the  purpose  of  vesting 
the  title  in  the  wife,  the  husband  being  at  the  time  insolvent,  were  held 
fraudulent  and  void,  not  only  against  existing,  but  subsequent  creditors. 
Id.,  495 

IDENTITT. 

See  Treaty. 

INFANT. 

See  Guardian  and  Ward 

INJUNCTION. 

1.  On  a  motion  for  an  injunction,  the  statements  in  the  bill  must  be  taken  as 
true;  and  the  relief  sought  must  be  consistent  with  the  case  made  by  the 
bill.     Michigan  State  Bank  v.  Hastings,  9 

2.  The  general  rule  is,  that  an  injunction  will  be  dissolved  where  the  equity  of 
the  bill  is  met,  and  full  and  clearly  denied  by  answer;  which  must,  how- 
ever, for  this  purpose,  be  positive,  and  full  and  satisfactory  to  the  Court. 
Attorney  General  v.  Oakland  County  Bank,  90 

3.  The  granting  and  continuing  of  injunctions  rest  in  the  discretion  of  the 
Court,  and  there  are  exceptions  to  the  rule  above  stated.     Id.,  90 

4.  If,  by  a  dissolution  of  the  injunction,  the  complainant  is  likely  to  be  deprived 
of  all  benefits  he  might  otherwise  derive  by  succeeding  in  the  suit,  it  will 
not  be  dissolved  as  a  matter  of  course,  on  the  coming  in  of  the  answer 
denying  the  equity  of  the  bill.     Id.,  90 

5.  An  injunction  will  not  be  dissolved  on  an  answer  admitting  the  equity  of  the 
bill,  and  setting  up  new  matter  as  a  defense.     Id.,  90 

6.  The  Court  of  Chauceiy  may  stay  or  prevent  nuisances  by  injunction,  and  the 
complainant  will  not  be  first  i-equired  to  establish  his  right  at  law,  unless 
doubtful,  and  in  dispute.     White  \.  Forhes,  11 '2 

7.  A  perpetual  injunction  was  granted  to  prevent  the  erection  of  a  dam,  which 
would  have  flooded  the  lands  of  complainant,  on  the  grounds  of  injury  to 
the  property,  and  the  probability  that  disease  would  be  generated  by  the 
overflowing  of  the  water.    Id.,  112 

8.  When  complainant  had  stood  by,  without  objecting,  and  allowed  defendant 
to  go  on  and  expend  a  considerable  amount  of  money  in  the  erection  of  a 
mill,  in  violation  of  the  terms  of  a  grant  made  by  complainant,  in  consid- 
eration of  the  erection  of  the  mill,  of  the  right  to  use  the  water  of  a  creek 
in  a  particular  manner,  it  was  held,  that,  by  his  silence,  he  had  waived  all 

510 


INDEX.  5G3 

INJUNCTION.— Co«^JrtM<^(Z. 

right  to  relief  in  equity,  by  injunction,  against  diverting  the  water.    Jacox 
V.  Clark,  249 

9.  Courts  of  equity  restrain  proceedings  at  law,  when  necessary  to  the  attain- 
ment of  justice,  not  by  assuming  jurisdiction  over  the  Courts  in  which  the 
proceedings  are  pending,  but  by  controlling  the  parties  to  such  proceedings 
by  injunction.     Bur2)ee  v.  Smith,  327 

10.  An  application  by  a  party  or  privy  to  a  proceeding  in  this  Court,  to 
stay  such  proceeding,  must  be  directly  to  the  Court  itself,  in  the  mat- 
ter of  the  suit  or  proceeding,  for  an  order  to  that  elfect;  and  an  officer 
out  of  C!ourt  has  no  authority  to  allow  an  injunction  for  that  purpose.  But 
where  the  case  was  such  that  an  order  would  have  been  granted,  and  the 
objection  was  not  taken  on  the  argument,  the  injunction  was  allowed  to 
stand  for  such  order.     Mason  v.  Payne,  459 

11.  Where  complainants  had  agreed  to  allow  defendants  to  draw  water  for 
running  a  mill  from  a  certain  lake,  the  outlet  of  which  flowed  through  com- 
plainants' lands,  and  had  suH'erod  them  to  go  on  and  construct  a  mill  and 
race  at  an  expense  of  three  thousand  dollars,  before  informing  them  they 
did  not  intend  to  abide  by  their  promise,  an  injunction,  which  had  been 
granted  to  restrain  the  taking  of  the  water  of  the  lake  for  the  mill,  was 
dissolved.    Payne  v.  Paddock,  48; 

12  Where  the  bill  prays  an  injunction,  but  it  is  omitted  in  the  prayer  for  pro- 
cess, it  is  a  good  ground  for  refusing  an  injunction,  but  not  for  dissolving 
it  when  it  has  been  allowed.     Taylor  v.  Snyder,  490 

lb.  Where  complainant,  after  a  statutory  foreclosure  of  a  mortgage,  filed  his 
bill  in  this  Court  to  foreclose  the  same  mortgage,  alleging  the  statutory 
foreclosure  to  have  been  invalid,  and  obtained  an  injunction,  it  was  dissolved 
on  the  ground  that  he  had  no  longer  any  interest  in  the  mortgage  or  mort- 
gaged premises,  and  that  the  purchaser  at  the  sale,  or  his  grantees,  should 
have  filed  the  bill.     Gilbert  v.  Cooley,  494 

14.  Where  an  injunction  had  been  granted,  enjoining  defendant  from  interfer- 
ing with,  or  encumbering  certain  lands  and  preiiii!;es,  and  defendant,  at  and 
prevdous  to  the  granting  of  the  injunction,  being  in  possession  of,  and  claim- 
ing title  to,  a  mill  on  the  land,  forcibly  put  out  two  agents  of  the  complain- 
ant who  came  into  the  mill  after  the  injunction  had  been  sei-ved,  and  re- 
fused to  leave  when  requested,  it  was  held  to  be  no  violation  of  the  injunc- 
tion, which  was  not  intended  to  dispossess  the  defendant.  Heniingiray  v. 
Preston,  52S 

See  ConroRATioN,  4. 

INTEREST. 

See  B.\NK,  4.    Usury,  1,2. 

511 


564  INDEX. 


IRREGULARITY. 

Irregulaiities  in  a  sale,  under  an  execution,  must  be  corrected  by  applying 
to  the  Court  out  of  which  the  writ  issued,  to  set  the  sale  aside.  There  must 
be  fraud  to  give  this  Court  jurisdiction;  irregularity  is  not  sufficient.  Cca- 
enangh  v  Jahcwaij,  344 

See  Judgment  Creditor's  Bill,  21. 
JUDGMENT  AT  LAW. 

It  is  well  settled  that  a  Court  of  Chancery  will  relieve  against  a  judgment  at 
law,  where  complainant  was  prevented  from  makmg  his  defense  at  law  by 
the  fraudulent  conduct  of  the  defendant.     Burj)ee  v.  Smith,  327 

See  Injunction,  9. 

JUDGMENT  CREDITOR'S  BILL. 

1.  A  judgment  creditor,  who  files  a  bill  to  have  his  judgment  satisfied  out  of 

choses  in  action  belonging  to  his  de  tor,  must  show,  1st,  A  judgment;  2d, 
An  execution  sued  out  on  such  judgment;  and  8d,  A  return  of  the  execu- 
tion unsatisfied  in  whole  or  in  part;  and  unless  these  facts  appear  affirma- 
tively in  the  biU,  this  court  has  no  jurisdiction  of  the  case.  Smith  v. 
Thompson,  1 

2.  An  execution  cannot  be  legally  returned  until  the  return  day  thereof;  and 
where  an  execution  was  returned  May  17th,  when  it  was  returnable  on  the 
18th,  the  return  was  held  to  be  insufficient  to  authorize  the  filing  of  a 
creditor's  bill.    Id.,  1 

3.  Where  a  judgment  creditor's  bill  is  verified  under  the  110th  rule,  by  the 
complainant's  agent,  who  is  not  also  solicitor  of  the  complainant,  the  jurat 
should  state  the  person  verifying  to  be  the  agent  of  the  complainant;  but 
where  it  is  verified  by  the  oath  of  the  complainant's  solicitor,  the  Court 
will  take  notice  of  that  fact  from  the  records  and  proceedings  in  the  cause. 
Bergh  v.  Poujiard,  5 

4.  There  are  two  classes  of  cases  in  which  a  judgment  creditor  may  come  into 
Chancery  for  relief.  1st,  In  aid  of  his  execution  at  law.  2d,  To  have  his 
judgment  satisfied  out  oi  choses  in  action,  or  other  property  of  the  debtor 
not  liable  to  execution.     Williams  v.  Hubbard,  28 

5.  In  the  first  class  of  cases,  he  must  show  that  an  execution  has  been  issued, 
but  it  is  not  necessary  to  show  that  it  has  been  returned.     Id.,  28 

6.  In  the  second  class,  the  biU  must  show  that  an  execution  has  been  issued 
and  returned  unsatisfied,  in  whole  or  in  part;  and  this  should  be  shown  by 
the  officer's  return.   Id.,  28 

7.  An  officer's  return,  to  be  sufficient  for  this  purpose,  must  be  such  as,  if  un- 
true,would  render  him  liable  for  a  false  return.    Id.,  28 

512 


INDEX.  565 

JUDGMENT  CREDITOR'S  VALL.—CouHnued. 

8.  A  return  of  an  execution  unsatisfied  by  direction  of  the  party  suing  it  out,  is 
not  sufficient  for  this  purpose.    Id.,  28 

9.  A  judgment  creditor's  bill  may  be  filed  for  the  double  purpose  of  aiding  an 
execution,  and  reaching  property  which  is  not  subject  to  execution.   Id.,  28 

10.  A  judgment  creditor  who  comes  into  this  Court  for  relief,  must  show  that 
he  has  in  good  faith  exhausted  his  remedy  at  law.  This  is  usually  done  by 
showing  an  execution  issued  to  the  county  where  the  debtor  resides,  re- 
turned unsatisfied  in  whole  or  in  part.  Freeman  v.  Michigan  State 
Dank,  62 

11.  Where  debtor  had  property  in  another  county,  which,  before  the  return 
day  of  the  first  execution,  he  offered  to  complainant  to  be  levied  upon,  held, 
the  complainant  should  have  caused  his  execution  directed  to  the  sheriff 
of  the  debtor's  county  to  be  returned,  and  sued  out  an  alias  execution  in- 
to the  county  where  the  property  was  situated.     Id.,  62 

12.  Tlie  execution  to  the  debtor's  county  may,  for  this  purpose,  be  returned  at 
anytime;  and  it  is  not  necessary  to  wait  until  the  return  day.      Id.,       62 

rj.  Tlie  filing  of  a  judgment  creditor's  bill,  without  answer  or  the  appointment 
of  a  receiver,  creates  no  lien  upon  the  debtor's  property;  and  complainant, 
upon  defendant's  decease  in  such  case,  loses  his  right  to  prosecute  the  suit. 
Jones  V.  Smith,  115 

14.  Where  plaintiff's  attorney  instructed  the  sheriff  not  to  levy  on  real  estate, 
and  on  the  return  of  the  execution  unsatisfied  filed  a  judgment  creditor's  bill, 
and  obtained  an  injunction,  the  injunction  was  dissolved  on  a  plea  of  the 
defendant  stating  the  instructions  given  to  the  officer,  and  that  defendant 
offered  to  turn  out  real  estate  to  be  levied  on,  when  called  on  by  the  officer 
^\'ith  the  execution.     Wharton  v.  Fitch,  143 

15.  The  return  of  an  execution  unsatisfied,  is  conclusive  between  the  parties  to 
a  judgment  creditor's  bill,  when  the  return  is  good  on  its  face,  and  has  not 
been  made  by  collusion  between  the  creditor  and  officer,  or  by  direction  of 
the  creditor.     Alhamj  City  Banl-\.  Dorr,  317 

16.  An  execution  creditor  is  not  bound  to  point  out  property  to  be  leaded  on; 
he  has  done  all  that  the  law  requires  of  him,  when  he  has  placed  his  exe- 
cution in  the  hands  of  the  sheriff,  whose  duty  it  is  to  make  the  money. 
Id.,  317 

17.  Where  a  judgment  creditor's  bill  was  filed  on  an  execution  returned  un- 
satisfied nearly  nine  years  before,  a  motion  for  the  appointment  of  a  re- 
ceiver was  denied.     Gould  v.  Trt/on,  353 

18.  An  execution  must  be  returned  within  a  reasonable  time  before  the  filing 
of  a  judgment  creditor's  bill,  and  nine  years  is  not  a  reasonable  time. 
Id.,  353 

19.  Tlie  examination  of  a  defendant  to  a  judgment  creditor's  bill,  under  an  or- 
der entered  in  pursuance  of  the  111th  rule  [105  of  the  new  rules]  is  not  con- 
fined to  defendant's  property  or  effects,  but  extends  to  any  matter  which 

YoL.  I.— 33  513 


566  INDEX. 

JUDGMENT  CREDITOR'S  BILL.— Continued. 

he  would  be  required  to  disclose  by  answer;  and  authorizes  the  examina- 
tion of  witnesses  on  any  matter  charged  in  the  bill,  and  not  admitted  by 
defendant  on  hLs  examination  before  the  Master.     Hoard  v.  Palmer,   391 

20.  Where  a  special  motion  was  made  for  an  order  for  a  receiver  imder  a  judg- 
ment creditor's  bill,  and  defendant  had  notice,  but  failed  to  appear  or  oppose 
the  motion,  it  was  held,  that  the  fact  of  a  demurrer  having  been  filed  was 
no  objection  to  granting  the  order  in  such  case,  and  that  the  defendant,  if 
he  meant  to  insist  upon  it,  should  have  interposed  his  objection  on  the 
hearing  of  the  motion,  that  the  Court  might  look  into  the  case  and  decide 
whether  it  was  well  taken.    Id.,  391 

21.  IiTegularity  in  the  appointment  of  a  receiver  under  a  judgment  credit- 
or's bill  is  no  ground  for  defendant's  objecting  to  submit  to  an  examination 
concerning  his  property  and  effects.     Id.,  391 

22.  The  assignor  of  a  judgment,  or  chose  in  action  on  which  a  judgment  has 
been  obtained  in  the  name  of  the  assignor,  is  not  a  necessary  party  to  a 
judgment  creditor's  bill  filed  by  the  assignee.    Morey  v.  Forsyth,         465 

23.  But  where  there  is  a  controversy  between  the  assignor  and  assignee,  touch- 
ing the  assignment,  the  Court  will  direct  the  assignor  to  be  made  a  party  for 
the  protection  of  all.     Id.,  465 

24.  A  judgment  creditor's  bill  cannot  be  sustained  to  reach  equitable  assets  or 
choses  in  action,  where  the  execution  was  returned  before  the  return  day. 
Beach  v.  White,  495 

25.  But  where  the  bill  asks  to  have  certain  conveyances  set  aside  as  fraudu- 
lent, it  may  be  sustained  for  that  purpose.     Id.,  495 

26.  The  assignor  of  a  judgment  is  not  a  necessary  party  to  a  bill  filed  by  his 
assignee  on  the  judgment,  unless  there  is  a  controversy  between  them, 
which  makes  it  necessary  for  the  protection  of  the  defendant;  although 
there  is  no  objection  to  making  him  a  party.    Id.,  495 

JURISDICTION. 

1.  A  State  may  sue,  but  it  cannot  be  sued  in  its  own  courts;  and,  where  the 
nominal  defendant  was  the  late  Auditor-General  of  the  State,  and  the  com- 
plainants' bill  sought  to  reach  property  conveyed  to,  and  held  by  him,  in 
his  official  capacity,  it  was  held,  that  the  State  was  the  real  party  defend- 
ant, and  that  the  Court  had  no  jurisdiction  of  the  case.  Michigan  State 
Bankv.  Hastings,  9 

2.  Where  relief  has  been  refused  to  a  party  in  this  Court  on  account  of  the 
illegality  of  a  transaction,  the  Court  will  not  aid  him  at  law.  Welles  v. 
Riier  Raisin  d;  Grand  Hirer  li.  B.  Co.,  35 

3.  To  give  this  Court  jurisdiction,  where  recovery  is  sought  of  the  amount  of  a 
lost  note,  it  is  not  necessary  that  it  should  have  been  lost  before  due. 
Green  v.  Stone,  109 

514 


INDEX.  567 

JURISDICTION.— Co»^/«i(«7. 

4.  Where  the  aid  of  this  Court  is  sought  to  protect  the  enjoyment  of  property, 
it  will  not  be  governed  by  the  mere  value  of  the  property,  but  will  inter- 
fere if  the  injury  will  materially  lessen  the  enjoyment  of  it  by  the  owner. 
White  V.  Forbes,  112 

5.  Where  parties  are  ti-ying  the  right  to  lands  at  law,  and  the  title  ot  de- 
fendants at  law  is  a  legal  and  not  an  equitable  title,  with  nothing  to  pre- 
vent their  establishing  it  as  fully  at  law  as  in  a  court  of  equity,  this  Court 
will  not  interfere,  but  will  leave  them  to  establish  their  defense  at  law. 
Stockton  v.  Williams,  120 

6.  Where  the  defendant  in  such  case,  instead  of  demurring,  submits  to  answer, 
and  does  not  in  his  answer  insist  on  the  objection  as  a  bar  to  the  jurisdic- 
tion of  the  Court,  and  proofs  are  taken  in  the  cause,  it  is  too  late  to  raise 
the  objection  at  the  final  hearing.    Id.,  120 

7.  The  Supreme  Court  has  no  original  equity  jurisdiction  and  cannot  act  upon 
any  facts  which  do  not  constitute  a  part  of  a  case  appealed  from,  and  leave 
to  amend  can  only  be  granted  by  the  Court  where  the  cause  originated. 
Bank  of  Michigan  v.  Niles,  398 

See  Condition,  2.  Corporation,  4.  Guardian  and  Ward,  5.  Injunc- 
tion, 6,  9.  Judgment  at  Law.  Judgment  Creditor's  Bill,  4. 
Treaty, 

LACHES. 

1.  The  ignorance  of  a  party  of  his  defense  at  law  is  not  a  sufficient  reason  to 
warrant  the  Court  in  interfering  with  a  judgment,  where  such  ignorance 
is  connected  with  negligence,  and  might  have  been  removed  by  the  use  of 
ordinary  means  to  obtain  the  necessary  information.     Wixom  v.  Davis,  15 

2.  A  neglect  to  apply  for  a  receiver  within  a  reasonable  time,  is  construed  into 
waiver  of  the  right  to  make  such  application.     Brown  v.  Chase,  43 

3.  Where  a  bill,  asking,  among  other  things,  relief  against  a  note,  was  filed 
within  thx-ee  yeai-s  and  a  half  from  the  time  it  was  given,  and  ^vithin  six 
months  after  it  became  due,  it  was  held,  that  the  delay  was  not  unreason- 
able, and  was  no  ground  for  refusing  relief.    Schwarz  v,  Wendell,       267 

4.  When  any  party  wishes  to  set  aside  the  proceedings  of  his  adversary  for  a 
mere  technical  irregularity,  he  must  make  his  application  at  the  first  op- 
poi'tunity;  and  a  defendant  who  has  not  caused  his  appearance  to  be  en- 
tered, is  entitled  to  no  more  indulgence  than  one  who  has  appeared.  John- 
son V.  Johnson,  309 

5.  Where  complainant  had  allowed  the  time  given  by  the  rules  of  Court  to  take 
testimony  to  expire,  without  showing  any  excuse  for  neglect,  except  that 
his  counsel  were  occupied  with  other  business,  the  motion  was  denied. 
Thayer  v.  Swift,  384 

515 


568  INDEX. 

LANDS  AND  LAND  TITLES, 

1.  A  complainant  under  the  act  of  1840,  must  show  a  complete  title  in  him- 
self, or  a  right  to  such  title,  before  he  can  call  upon  a  defendant  to  release. 
Stockton  V.  Williams,  120 

2.  By  the  treaty  made  at  Saginaw,  September  24th,  1819,  the  individual  reser- 
vees  obtained  a  legal  title  to  the  lands  reserved,  which  attached  as  soon  as 
the  lands  were  located,  and  required  no  further  action  to  complete  it. 
Id.,  120 

3.  The  title  to  lands  may  pass  by  act  of  Congress,  or  treaty  stipulation,  as  well 
as  by  patent.     Id.,  120 

4.  By  the  Saginaw  treaty,  the  Indian  title  to  the  reserved  lands  did  not  pass  to 
the  United  States;  but  the  treaty  operated  as  a  release  both  by  the  Indians 
and  the  government,  of  all  interest  which  either  had  in  the  lands  reserved 
to  the  respective  reservees  in  fee  simple.     Id.,  120 

5.  Under  the  act  of  Congress  of  March  3d,  1807.  entitled,  "  An  act  regulating 
the  grants  of  land  in  the  Territory  of  Michigan,"  which  provides,  that 
the  fee  simple  of  every  tract  or  parcel  of  land  that  was  settled,  occupied 
and  improved,  prior  to  the  first  day  of  July,  1796,  should  be  gi-anted  to 
the  person  or  persons  in  the  actual  possession,  occupancy,  and  improve- 
ment thereof; — it  tvas  held,  that  the  act  recognized  no  right  in  claimants 
but  that  of  occupancy  or  possession,  as  the  stock  in  which  the  fee  was  to 
be  ingi-afted;  and  that  where  three  brothers,  on  the  death  of  their  father, 
claimed  a  tract  of  land  under  a  '"  substitution,"  or  a  kind  of  entailment, 
by  which  the  land  belonged  to  the  eldest  son  his  hfetime,  and  after  his 
death  to  the  second  son  his  hfetime,  &c.,  the  eldest  son,  under  the  claim 
set  up  by  the  brothers,  being  entitled  to  the  occupancy  or  possession  in  his 
own  right,  to  the  exclusion  of  his  brothers,  was  also  entitled  to  the  fee 
simple  in  his  own  right,  under  the  act  of  Congress;  and  that,  having 
presented  his  claim,  and  procured  its  allowance,  and  obtained  a  patent  for 
the  land,  there  was  no  resulting  trust  in  favor  of  his  brothers.  Chene 
V.  Bank  of  Michigan,  511 

See  Acknowledgment.    Adverse  Possession.    Deed.    Registry,  2,  3, 

4.    Vendor  and  Purchaser,  1,  2,  3,  5. 

LEASE. 

See  Construction,  7,  8. 

LEGISLATIVE  COUNCIL. 

See  Corporation,  1. 

LIEN. 

When  two  persons  have  a  lien  on  the  same  piece  of  property  which  is  not 
516 


IXDEX.  569 


LIEN. — Continued. 


sufficient  to  satisfy  both,  and  on<;  has  a  lien  for  his  debt  on  another  piece  of 
property,  he  must  exhaust  the  latter  before  he  can  resort  to  the  common 
fund.     TrowhriiJge  v.  Ilurleston,  185 

See  Judgment  Creditor's  Bill,  13. 

MASTER  IN  CHANCERY. 

See  Practice,  VIII. 

MICHIGAN  STATE  BANK. 

1.  Tlie  commissioners  appointed  to  settle  with  the  Michig^an  State  Bank,  under 
the  act  of  February  1,  1840,  had  no  right  to  bind  the  State  to  pay  any 
debts  of  the  bank.     Hammond  v.  Michigan  State  Bank,  214 

2.  Where  the  Michigan  State  Bank  made  an  assignment  to  the  commissioners 
appointed  on  behalf  of  the  State  to  make  a  settlement  with  it,  on  condi- 
tion that  the  State  should  indemnify  and  save  harmless  the  bank  from 
certain  liabilities,  and  the  commissioners  thereupon  released  the  bank  from 
all  its  liability  to  the  State,  and  the  State  refused  to  accept  the  condition, 
(whicli  the  commissioners  were  not  authorized  to  make,)  and  caused  a  bill 
to  be  filed  to  recover  possession  of  a  part  of  the  property  assigned,  and  for 
an  account,  and  was  demurred  to,  for  want  of  equity,  the]  demurrer  was 
overruled ;  and  it  was  held  that  the  State  acquii-ed  by  the  assignment,  a 
right  to  the  property,  notwithstanding  the  rejection  of  the  condition.    Id., 

214 

MISTAKE. 

1.  Where  a  bill  was  filed  to  correct  a  mistake  in  the  description  in  a  deed,  of 
land  which  had  been  surveyed  and  located,  but  it  teas  not  sought  to  change 
the  location,  and  T.  held  a  lot  described  in  his  purchase  deed  as  bounded  by 
such  land,  held  that  he  need  not  be  made  a  party,  as  his  interests  would 
not  be  afiected  by  the  decree.    Norris  v.  Hard,  102 

2.  Where  a  lot  which  had  been  surveyed,  located,  and  platted  on  a  diagram,  was 
sold  by  an  erroneous  description,  but  the  purchaser  and  all  succeeding 
holders  occupied  it  as  marked  out  by  the  survey,  a  decree  was  made  to  cor- 
rect the  mistake,  and  releases  were  ordered  to  be  made  between  the  par- 
ties whose  lands  were  affected  by  the  eiToneous  description,  to  make  their 
lots  conform  to  the  location.     Id.,  102 

3.  A  mistake  in  a  deed,  or  other  written  instrument,  when  proved  to  the  satis- 
faction of  the  Court,  is  a  good  ground  for  refusing  relief  to  which  complain- 
ant would  otherwise  be  entitled.     Garlinghouse  v.  Dixon,  440 

MORTGAGE. 

I.  General  imnciples  concerning  moiigagcs  and  the  rights  acquired  under 
them. 

517 


570  INDEX. 

MOUTGAGE.— Continued. 

II.  Proceedings  on  foreclosure  in  Cliancenj. 

III.  Assignments  and  the  rights  of  assignees. 

IV.  Registry. 

V,  Redemption  of  mortgaged  premises. 
VI.  Foreclosure  under  power  of  sale. 

I.  General  principles  concerning  mortgages  and  the  rights  acquired  under 
them. 

1 .  The  legal  title  to  lands  mortgaged  is  in  the  mortgagee,  who  may,  at  any 
time  after  default,  if  not  before,  unless  the  mortgage  provides  that  the 
mortgagor  shall  retain  possession,  put  him  out  by  ejectment.  Stevens  v. 
Broivn,  41 

2.  See,  however,  the  note  to  the  same  case,  on  p.  42,  for  a  subsequent  statu- 
tory provision,  altering  the  law  on  this  point. 

3.  A  security  is  presumed  sufficient,  until  the  contrary  is  shown.  Broicn  v. 
Chase,  43 

4.  Where  S.  held  a  judgment  against  C,  and  C.  executed  a  deed  to  H.  as 
trustee,  authorizing  him,  in  case  the  debt  was  not  paid  in  six  months,  to  sell 
the  land,  it  was  held  that  the  deed  was  a  mortgage,  and  to  bar  the  equity 
of  redemption,  it  should  have  been  foreclosed  at  law,  or  by  bill  in  this 
Court.     Comstock  v.  Stewart,  110 

5.  The  Court  of  Chancery  will  not  prevent  a  mortgagee  from  taking  posses- 
sion of  mortgaged  premises,  or,  if  he  is  in  possession,  deprive  him  of  it,  so 
long  as  there  is  anj'thing  due  on  the  mortgage.     Schwarz  v.  Sears,      170 

6.  Where  a  person  mortgages  lands  which  he  holds  under  a  bond  for  a  deed, 
he  conveys  thereby  no  legal  interest  in  the  bond,  but  only  an  equitable  in- 
terest, and  the  registry  of  such  mortgage  is  notice  to  no  one.  Wing  v. 
McDowell,  175 

7.  Wliere  A.  was  pardoned,  on  condition  he  should  secure  the  payment  of  a 
fine  of  $1,000  to  the  county,  and  the  county  commissioners  took  a  mortgage 
to  themselves  instead  of  the  county,  the  mortgage  was  held  to  be  good,  and 
the  commissioners  were  declared  trustees  for  the  county,  the  law  implying 
a  trust  from  the  nature  of  the  transaction.     Rood  v.  Winslow,  340 

8.  Where,  in  a  conditional  pardon,  the  person  pardoned  was  ordered  to  secure 
the  payment  of  $1 ,000  to  the  county,  and  the  county  commissioners  obtained 
amortgage  for  $1,150,  the  mortgage  was  held  goodfor  the  $1,000,  and  void 
as  to  the  residue.   /(/.,  340 

9.  Anything  done  by  a  first  mortgagee  to  the  prejudice  of  a  second  mortgagee 
with  a  knowledge  of  the  second  mortgage,  should,  to  the  extent  of  such 
injury,  postpone  the  first  to  the  second  mortgage.    Bailey  v.  Gould,   478 

10.  Where  the  holder  of  a  mortgage  released  a  note  which  was  given  with  it, 
reserving  at  the  same  time  his  right  to  foreclose  the  mortgage  on  the  land, 
and  a  second  mortgagee,  with  notice  of  the  first  mortgage,  had,  prior  to 
the  release,  foreclosed  his  own  mortgage  at  law,  and  purchased  the  prem- 

518 


INDEX.  571 

MORTGAGE— Contiimed. 

ises,  the  latter  was  held  to  stand  in  the  place  ot  a  purchaser  of  the  equity 
of  redi  iiiption  subject  to  the  first  mortyago,  and  the  promises  in  liis  hands, 
as  such  purchaser  with  notice,  to  be  the  primary  fund  for  the  payment  of 
the  first  mortg'aj^e.    Id.,  478 

1 1 .  A  mortya<re  p-iven  by  a  fraudulent  srantor  to  a  creditor,  to  secure  the  pay- 
ment of  a  judt^ment,  is  fj-ood  afrainst  the  fraudulent  g^rautee,  and  all  claim- 
ing under  him  with  notice  of  the  fraud.    Fux  v.  Clark,  535 

12.  It  is  also  good  against  a  creditor  of  the  fraudulent  grantor,  who  has  had  the 
assignment  set  aside,  but  who  had  acquired  no  lien  on  the  property  for 
his  debt  prior  to  the  mortgage.    Id.,  5;j5 

II.  Proceedings  on  foreclosure  in  Chancery. 

1:5.  The  petition  under  117th  section,  (R.  S.  376,)  should  set  forth  briefly  all 
the  facts  necessary  to  enable  the  mortgagor,  as  well  as  the  Court,  to  under- 
stand its  object.     Albany  City  Bank  v.  Steevens,  6 

14.  A  copy  of  the  petition,  with  a  notice  of  the  time  of  presentation  to  the 
Court,  must  be  served  on  the  mortgagor,  in  order  to  afford  him  an  oppor- 
tunity to  show  cause  why  the  prayer  of  the  petition  should  not  be  granted. 
Id.,  6 

15.  Where  the  service  cannot  be  made  on  the  mortgagor,  by  reason  of  his  ab- 
sence from  the  State,  it  may  be  made  on  his  solicitor.     Id.,  6 

IG.  A  copy  of  the  petition  need  not  be  served  on  defendants  made  parties  as 
subsequent  incumbrancers.     Id.,  6 

17.  Before  appointing  a  receiver  to  take  charge  of  mortgaged  premises,  in  a 
suit  for  the  foreclosure  of  a  mortgage,  the  Court  must  be  satisfied,  first,  that 
the  i3rcmises  are  insufficient  to  pay  the  debt;  and,  second,  that  the  party 
personally  liable  is  insolvent,  so  that  an  execution  for  the  balance  due  after 
sale  would  be  unavailing.     Brown  v.  Chase,  43 

18.  A  writ  of  assistance  will  be  granted  to  put  the  purchaser  of  mortgaged 
premises  in  possession,  if  the  defendant,  on  being  shown  the  Master's  deed, 
and  a  certified  copy  of  the  order  confirming  the  sale,  under  the  seal  of  the 
Court,  refuse  to  deliver  possession.     Hart  v.  Linsday,  144 

19.  The  English  doctrine  of  tacking  mortgages  has  not  been  adopted  in  this 
country.     Wing  v.  McDowell,  175 

20.  Under  the  statute  regulating  the  terms  on  which  non-resident  defendants, 
in  mortgage  cases,  are  permitted  to  appear  and  defend,  two  things  only  are 
required  of  the  defendant,  viz :  his  appearance  before  the  mortgaged  prem- 
ises are  sold  on  the  decree,  and  the  payment  of  such  costs  as  the  Court  shall 
award.  The  costs  only  ai-e  left  discretionary  -wath  the  Court,  and,  on  the 
payment  of  them,  defendant  has  a  right  to  interpose  a  defense.  Bailey  v. 
Murphy,  305 

21.-  The  statute  extends  to  all  defendants  who  are  non-residents,  and  makes 

510 


572  INDEX. 

UORTGcAGE— Continued.  .• 

no  distinction  between  mortgagors  and  subsequent  incumbrancers.  Id.,  305 

22.  No  proceeding  can  be  had  on  a  bill  for  the  foreclosure  of  a  mortgage,  if  it 
appear  that  any  judgment  has  been  obtained  on  a  suit  at  law  for  the  money 
demanded  by  such  bill,  or  any  part  thereof,  unless,  to  an  execution  against 
the  property  of  the  defendant  in  such  judgment,  the  sheriff  shall  have 
returned  the  execution  unsatisfied,  in  whole  or  m  part,  and  that  defend- 
ant has  no  property  to  satisfy  the  execution  except  the  mortgaged  prem- 
ises. ■  Dennis  v.  Hemingway,  387 

23.  To  prevent  proceedings  on  a  foreclosure  bill,  it  is  not  necessary  that  judg- 
ment shall  have  been  rendered  on  the  bond  or  note  accompanying  the  mort- 
gage, but  for  the  money  for  which  the  mortgage  was  given    Id.,         387 

24.  Where  a  part  of  mortgaged  premises  has  been  ahened  by  the  mortgagor, 
subsequent  to  the  mortgage,  the  rule  of  equity,  on  a  foreclosure  and  sale, 
is  to  require  that  part  of  the  premises  in  which  the  mortgagor  has  not  parted 
■with  his  equity  of  redemption,  to  be  first  sold;  and  then,  if  necessary,  that 
■which  has  been  alipned:  and,  ■where  the  latter  is  in  possession  of  different 
vendees,  in  the  inverse  order  of  alienation.     Mason  v.  Paijne,  459 

25.  But  where  a  part  of  mortgaged  premises  is  conveyed  by  the  mortgagor  sub- 
ject to  the  payment  of  the  ivhole  of  the  mortgage,  that  part  as  bet'ween  the 
vendor  and  vendee  constitutes  the  primary  fund  for  its  payment.   Id.,  459 

26.  Where  a  lot  of  land  was  conveyed  by  complainant,  subject  to  the  payment 
of  a  mortgage  on  certain  other  lands,  and  proceedings  were  had  in  chanceiy 
to  foreclose  the  mortgage,  and  the  decree  became  the  property  of  one  of 
the  defendants  who  also  purchased  the  lot  on  which  payment  was  charged, 
it  teas  held,  that  such  purchase  amounted  to  a  satisfaction  of  the  mortgage 
to  the  value  of  the  lot  so  purchased.    Id.,  459 

27.  Where  a  bill  is  filed  to  foreclose  a  mortgage  against  a  non-resident  mort- 
gagor, who  does  not  appear,  if  the  mortgaged  premises  are  insufficient  to 
satisfy  the  debt,  the  complainant  must  have  recourse  to  his  remedy  at  law 
for  the  balance;  and  this  Court  has  no  power  to  issue  execution  thereon. 
Lawrence  v.  Fellows,  468 

28.  Where  a  foreclosure  bill  did  not  state  that  anything  was  due  .on  the  note 
executed  with  the  mortgage,  or  whether  any  proceedings  had  been  had  at 
law  for  the  recovery  of  the  debt,  it  was  held  to  be  demurrable.  Bailey  v. 
Gould,  478 

29.  When  a  person  not  a  party  to  the  suit,  has  come  into  possession  of  mort- 
gaged premises  since  its  commencement,  and  refuses  to  deliver  up  possession 
to  the  purchaser,  on  production  of  the  Master's  deed  and  a  certified  copy  of 
the  order  confirming  the  sale,  a  writ  of  assistance  will  not  be  granted, 
unless  notice  of  the  motion,  with  the  affidavit  on  which  it  is  founded,  is 
served  upon  liim.     Benhard  v.  Darrow,  519 

III.     Assignments,  and  the  rights  of  assignees. 

30.  The  assignee  of  a  mortgage  takes  it  subject  to  all  equities  existing  be- 

520 


INDEX.  573 

MORTGAGE— CoHiinued. 

tween  the  parties  to  it,  at  tlie  time  ot    the  assignment,      liussdl  v. 
Waite,  '^^ 

31.  Where  a  mortgage  was  given  accompanying  a  promissory  note,  and  they 
were  assigned  before  due  to  a  bona  Jiih  endorsee,  held,  that  he  was  not  af- 
fected by  any  equities  existing  between  the  original  parties.  It  woukl  have 
been  otherwise,  if  a  bond  had  been  given  instead  of  the  note.  Reeves  v. 
Scully,  248 

32.  The  assignment  of  a  mortgage,  without  the  debt  which  it  is  given  to  se- 
cure, carries  no  beneficial  interest  in  the  mortgage  to  the  assignee,  who 
would  hold  it  subject  to  the  will  and  disposal  of  the  creditor.  Bailey  v. 
Gould,  4"^^ 

IV.     Registry. 

33.  An  agreement  in  the  nature  of  a  defeasance  is  required  by  the  revised 
statutes  to  be  recorded,  only  when  it  relates  to  a  conveyance,  which,  on  its 
face,  purports  to  be  absolute.    Russell  v.  Waite,  31 

V.     Redemption  of  mortgaged  premises. 

34.  When  the  mortgagor  comes  Avith  his  money  to  redeem,  the  mortgagee 
must  account  for  the  profits  of  the  mortgaged  premises,  of  which  the  crops 
which  he  may  have  appropriated  or  destroyed,  wiU  be  considered  a  part . 
Stevens  v.  Brown,  '*'■ 

35.  The  act  of  1840,  for  the  foreclosure  of  mortgages,  requires  the  redemption 
money  of  the  premises  sold  to  be  paid  to  the  register  of  deeds,  and  to  no 
other  person;  and  it  is  his  duty,  upon  such  payment,  to  destroy  the  deed 
and  pay  over  the  money  to  the  purchaser,  his  heirs  or  assigns.  Wood- 
bury V.  Leivis,  ^'^^ 

36.  The  register  of  deeds  has  no  right  to  receive  anything  but  money,  in  re- 
demption of  property  sold.  His  powers  are  hmited  to  receiving  the  money, 
and  destroying  the  deed.  He  is  a  special  agent  for  these  purposes,  only, 
and  his  acts  are  not  bmding  on  the  purchaser,  when  he  exceeds  or  departs 
from  his  authority,  without  the  assent  of  the  purchaser.     Id.,  256 

37.  Where  a  bill  was  filed  to  have  a  deed  of  mortgaged  premises  canceled,  on 
the  ground  that  the  redemption  money  had  been  piiid,  and  it  appeared  that 
the  register  of  deeds  had  received  a  check  for  the  amount  from  complainant, 
it  was  held  to  be  no  payment,  and  the  bill  was  dismissed,    /d.,  256 

38.  The  vendee  of  an  equity  of  redemption  stands  in  the  place  of  the  mortga- 
gor and  holds  the  property  subject  to  all  incumbrances;  and  where  there 
were  two  mortgages,  and  the  mortgaged  premises  had  been  sold  by  foreclos- 
ure, at  law,  on  the  first  mortgage,  on  the  payment  of  the  redemption  money 
by  such  vendee,  and  the  assignment  to  him  by  the  purchaser  at  the  mort- 
gage sale  of  all  the  interest  of  the  latter  m  the  land,  it  was  held,  that 
such  vendee  could  not  claim  the  rights  of  the  purchaser  at  the  sale,  for 

521 


574  INDEX. 

MORTGAGE— Continued. 

the  purpose  of  defeating  the  second  mortgage.   Johnson  v.  Johnson,    331 

39.  When  a  subsequent  mortgagee  pays  the  redemption  money  of  the  mort- 
gaged premises  to  the  purchaser  under  the  foreclosure  of  a  prior  mortgage, 
he  does  not  succeed  to  the  rights  of  such  purchaser,  but  stands  in  the  i)lace 
of  the  prior  mortgagee,  the  only  additional  right  which  he  acquires  being 
the  right  to  be  reimbursed  what  he  has  paid,  with  interest,  on  foreclosing 
his  own  mortgage.    7d.,  331 

40.  When  a  mortgagor  redeems,  it  should  always  be  construed  as  a  payment, 
he  being  personally  liable  for  the  debt.  But  when  his  vendee  redeems, 
who  is  not  personally  Uable,  and  there  is  an  intervening  mortgage  between 
the  one  redeemed  by  him  and  his  equity  of  redemption,  the  same  mle 
should  prevail  as  in  case  of  a  redemption  by  a  subsequent  mortgagee. 
Id.,  331 

41 .  Where  a  mortgage  of  indemnity  was  foreclosed  at  law,  before  the  mortga- 
gee had  been  damnified,  the  mortgagor  was  held  entitled  to  redeem. 
Thurston  v.  Prentiss,  529 

42.  Where  W.  W.  gave  a  mortgage  on  land,  and  the  mortgage  was  foreclosed 
at  law  by  advertisement  and  sale  under  the  statute,  but,  before  the  redemp- 
tion expired,  he  died,  leaving  a  widow,  who  sold  the  land  to  P.  D.  W.  by 
a  warranty  deed,  in  consideration  of  Ms  paying  her  $25  and  what  was  due 
on  the  mortgage;  and  P.  D.  W.  redeemed  the  land  under  the  mortgage 
sale,  by  paying  what  was  due,  and  the  heirs  of  W.  W.  afterwards  brought 
an  action  of  ejectment  against  P.  D.  W.  to  recover  possession  of  the  land; 
it  icas  held,  he  had  a  hen  on  the  land  for  the  redemption  money  paid  by 
him,  with  interest,  less  the  use  and  occupation  of  the  premises  over  and 
above  improvements.     Wehh  v.  Williams,  544 

VI.    Foreclosure  under  poiver  of  Sale. 

43.  If  a  mortgagor  wishes  to  test  the  validity  of  a  statutory  foreclosure  in  this 
Court,  he  must  file  a  bill  to  redeem.  He  cannot  file  a  bUl  to  set  aside  the 
sale,  and  have  the  property  re-sold,  although  the  mortgagee  may  have 
abused  the  power  to  sell,  and  purchased  the  property  himself.  Schwa rz 
V.  Sears.  l^O 

44.  Ante  Mortgage,  10. 

45.  Although  a  statutory  foreclosure  be  irregular,  and  no  bar  to  the  equity  of 
redemption,  yet  the  purchaser  at  such  side  succeeds  to  all  the  interest  of 
the  mortgagee.     Gilboi  v.  Cooleij,  494 

See  Assignment,  1,  2,  3.    Evidence,  7,  9.    Injunction,  13. 

NAVIGABLE  WATERS. 

1.  Navigable  waters  are  public  highways  at  common  law;  and  the  only  object 
of  the  clause  in  the  ordinance  of  1787,  relating  thereto,  was,  to  secure  to 

522 


INDEX.  675 

NAVIGABLE  WATERS.— C'o«</MHt'<?. 

citizens  of  the  Confedeuatcd  States  such  rights,  in  relation  to  those  waters 
■\vithin  the  territory  northwest  of  the  Ohio,  as  were  ahready  possessed  by 
the  inhabitants  of  that  territory;  and  to  prevent  any  tax  or  duty  on  per- 
sons navigatmg  them.  LaPlaisance  Bay  Harbor  Co.  v.  City  of  Monroe,  155 

2.  There  is  nothing  in  the  ordinance  prohibiting  the  State  from  improving  its 
navigable  waters.    Id.,  155 

3.  Where  complainants  were  authorized  by  their  charter  to  erect  works,  &c., 
and  improve  the  harbor  of  La  Plaisance  bay,  held,  that  the  diversion  of  a 
river,  at  a  point  some  distance  above  its  mouth,  in  the  bed  of  which  they 
had  no  title,  which  flowed  into  said  bay,  and  caused  a  channel  to  be  kept 
open  through  it,  created  no  damage  for  which  they  were  entitled  to  com- 
pensation.    Id.,  1"^^ 

4.  The  beds  of  all  meandered  streams  and  navigable  waters,  belong  to  the  State 
within  which  they  lie;  and  the  riparian  proprietor  has  no  right  to  the  land 
covered,  without  express  grant.    Id.,  155 

NOTICE. 

1.  A  plea  of  a  bona  fide  purchaser  without  notice,  must  aver,  not  only  a  want 
of  notice  at  the  time  of  the  purchase,  but  also  at  the  time  of  its  comple- 
tion, and  the  payment  of  the  money.  The  money  must  have  been  actually 
paid  before  notice.     Thomas  v.  Graham,  H"? 

2.  It  is  not  enough  that  the  party  has  secured  the  money ;  he  must  have  paid  it 
or  become  bound  in  such  a  way  that  this  Court  could  not  relieve  him  from 
the  payment  of  it.    Id.,  H' 

See  Equity,  Priority  of,  1,  2.    Vendor  and  Purchaser,  1,  3,  4,  5. 

NUISANCE. 

See  Injunction  6. 

ORDINANCE  OF  1787. 

1.  The  ordinance  of  1787,  for  the  government  of  the  Ten-itory  of  the  United 
States  northwest  of  the  River  Ohio,  is  no  part  of  the  fundamental  law  of 
the  State,  since  its  admission  into  the  Union.  It  was  then  superseded  by 
the  State  Constitution;  and  'such  parts  of  it  as  are  not  to  be  found  in  the 
Federal  or  State  Constitution,  were  then  annulled  by  mutual  consent.  La 
Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe,  155 

2.  That  ordinance  was  enacted  before  the  Constitution  of  the  United  States, 
with  a  view  to  existing  circumstances;  and  was  intended  to  operate  be- 
tween the  confederacy  and  the  territory,  as  the  articles  of  confederation  did 
between  the  States.  In  construing  it,  the  articles  of  confederation,  and 
not  the  Federal  Constitution,  must  be  looked  at.    Id.,  155 

523 


576  INDEX. 

ORDINANCE  OF  1181.— Continued. 

3.  By  the  "  permanent  constitution  and  State  government,"  mentioned  in  the 
ordinance,  is  to  be  understood  the  establishment  of  a  new  government,  as 
a  substitute  for  the  territorial  one,  and  a  constitution  instead  of  the  ordi- 
nance; and  this  substitution  was  to  be  not  for  part,  but  for  the  whole  of 
each.    Id.,  155 

See  Navigable  Waters,  1,  2.    Registry,  2. 

PARTIES. 

See  Judgment  Creditor's  Bill,  22,  23,  26.    Mistake,  1.    Pleading,  1, 

PARTITION. 

A  partition  will  be  decreed  according  to  the  equitable  rights  of  the  parties. 
But,  to  enable  the  Court  to  make  such  decree,  their  equitable  rights  should 
appear  from  the  pleadings.     Thayer  v.  Lane,  200 

PARTNERSHIP. 

1 .  In  equity,  as  between  partners  themselves,  real  estate  purchased  by  them 
with  partnei'ship  effects,  is  partnership  property,  and,  on  the  dissolution  of 
the  firm,  should  be  divided  as  such,  each  party  taking  the  same  share  in  it 
as  in  the  personal  property,  unless  at  the  time  of  the  purchase  it  was  un- 
derstood to  be  an  individual  and  not  a  partnership  transaction.  Thayer 
v.  Lane,  200 

2.  Where  the  question  of  partnership  arises,  not  with  third  persons,  but  be- 
tween the  parties  themselves,  the  agreement  out  of  which  the  supposed  . 
partnership  arises,  is  to  be  construed  as  any  other  instrument  between  the 
same  parties.     Bird  v.  Hamilton,  361 

3.  Where  a  party  had  failed  to  perform  the  preliminaiy  conditions,  upon  the 
compliance  with  which  a  partnership  was  to  be  formed,  and  the  other  par- 
ty to  the  agreement,  to  enable  him  to  perform,  furnished  his  own  capital, 
and  for  a  short  time  can-ied  on  the  business  in  the  name  of  the  proposed 
firm,  it  was  held,  that  this  was  no  waiver,  and  could  not  entitle  the  de- 
faulting party  to  the  rights  of  a  partner.    Id.,  361 


PLEADING. 

I. 

Parties. 

II. 

Bill. 

III. 

Demurrer. 

IV. 

Flea. 

V. 

Answer. 

VI. 

Cross  Bill  and  Replication. 

524 


VLEXDlliiG.— Continued. 


INDEX.  577 


I.    Parties. 


1 .  When  the  matter  in  litig'ation  ia  entire  in  itself,  it  is  not  necessary  that  each 
defendant  should  have  an  interest  in  the  suit  co-extensive  with  the  claim 
set  up  by  the  bill;  he  may  have  an  interest  in  a  part  of  the  matter  in  liti- 
{ifation,  instead  of  the  whole.    Ingersoll  v.  Kirhij,  65 

2.  Where  complainant  had  signed  a  joint  and  several  note  with  H.  and  was 
sued  alone,  and  had  judgment  rendered  against  him  on  the  note  at  law, 
held,  that  he  need  not  make  H.  a  party  to  a  suit  in  this  Court  to  restrain 
proceedings  on  the  judgment  at  law.     Burpee  v.  Smith,  327 

)').  A  magistrate  before  whom  a  judgment  was  rendered  is  not  a  proper  party 
defendant  to  a  suit  brought  in  Chancery  to  restrain  proceedings  on  it. 
Id.,  327 

4.  Where  an  officer  has  an  execution  in  his  hands,  still  in  force,  he  is  a  neces- 
sary party  to  a  bill  which  seeks  to  resti-ain  proceedings  upon  the  judgment 
on  which  it  was  issued.    Id.,  327 

5.  It  IS  a  good  ground  of  demuiTcr  to  the  whole  bill  that  one  of  the  complain- 
ants has  no  interest  in  the  suit,  and  has  improperly  joined  with  others  in 
filing  the  bill;  but  there  is  no  such  rule  in  regard  to  defendants.  Darstow 
V.  Smith,  394 

6.  Tn  a  suit  respecting  lands,  where  defendants  were  described  in  the  bill  as 
heirs  of  the  father,  when  in  fact  they  claimed  as  heirs  of  their  mother,  it  was 
held,  that  they  were  properly  made  parties,  as  claiming  an  interest  in  the 
property  in  controversy;  and  that,  if  they  wished  to  take  the  objection  that 
their  interest  was  not  properly  made  to  appear  in  the  bill,  they  should 
have  demurred ;  and  that  it  was  too  late  to  raise  it  on  the  hearing,  after 
proofs  had  been  taken,  and  it  appeared  to  the  Court  that  the  proper  par- 
ties were  before  it.     Chipman  v.  Thompson,  405 

7.  Where  a  complainant  parted'with  his  interest  in  a  mortgage  before  answer, 
it  was  held  a  good  objection  to  the  suit.     Wallace  v.  Dunning,  416 

8.  Where  F.  sold  a  piece  of  land  by  wan-anty  deed  to  C.  and  took  back  a 
mortgage,  and,  after  liis  death,  the  land  was  advertised  to  be  sold  for  taxes 
levied  before  the  sale  to  C,  and  the  executors  and  trustees  of  F.  attended 
the  sale  for  the  purpose  of  pui-chasing  the  land,  and  thereby  saving,  as 
they  supposed,  a  foreclosure  of  the  mortgage,  but  were  prevented  fi'om 
doing  so  by  the  fraudulent  conduct  of  S.,  against  whom  they  filed  their 
bill,  it  was  held,  that  C.  need  not  be  a  party.     Taylor  v.  Snyder,  490 

II.     Bill. 

9.  Wliere  a  bill  is  filed  for  relief,  the  discovery  is  ancillary,  and  a  demurrer 
which  is  good  to  the  relief  is  good  to  the  discovery.  Welles  v.  River 
Raisin  and  Grand  River  It.  R.  Co.,  35 

10.  Where  a  complainant,  entitod  to  discovery  only,  goes  on  to  pray  relief  in 
addition,  his  whole  bill  is  demurrable.    Id.,  35 

525 


578  INDEX. 

TLEABmG.— Continued. 

11.  A  complainant  cannot  demand  several  distinct  things  having  no  connec- 
tion with  each  other,  of  several  defendants,  by  the  same  bUl.  Ingersoll  v. 
Kirbij,  65 

12.  The  relief  given  by  the  Court  must  be  consistent  with  the  case  made  by 
the  bill.     Thayer  v.  Lane,  20 ) 

13.  To  determine  whether  a  bill  is  multifarious,  we  must  look  to  the  stating 
part  of  the  bill,  and  not  to  the  prayer  alone  ;  for,  if,  in  his  prayer  for  relief, 
complainant  ask  several  things,  to  some  of  which  he  may  be  entitled,  and  to 
others  not,  the  bill  is  not  on  that  account  multifarious,  but  he  will,  on  the 
hearing,  be  entitled  to  that  specific  rehef  only,  which  is  consistent  with  the 
case  made  in  the  stating  part  of  the  bill.  Hammond  v.  Michigan  State 
Bank,  214 

14.  Different  causes  of  complaint,  of  the  same  nature,  and  between  the  same 
parties,  may  be  united  in  one  suit,  where  the  same  relief  is  asked;  but  where 
the  causes  of  complaint  are  dissimilar  in  their  nature,  and  would  require 
chfferent  decrees,  it  would  embarrass,  rather  than  expedite,  the  adminis- 
tration of  justice,  to  allow  them  to  be  united  in  the  same  bill.  Hart  v. 
McKeen,  417 

15.  A  bill  framed  with  a  double  aspect  must  be  consistent  with  itself.  It 
should  not  set  up  different  and  distinct  causes  of  complaint  that  destroy 

each  other.    Id.,  417 

16.  Where  a  bill  was  filed  to  have  a  tax  sale  set  aside,  held,  that  it  was  not 
necessary  to  offer  in  the  bill  to  refund  the  money  paid  by  S.  for  the  tax 
title  fraudulently  obtained  by  him.     Taglor  v.  Sni/der,  490 

III.    Demurrer. 

17.  A  general  demurrer  will  be  overruled,  unless  good  as  to  the  whole  of  the 
bUl.     Williams  v.  Hubbard,  28 

18.  Where  a  defendant  who  should  have  demurred  to  discovery  only,  demurs 
to  both  discovery  and  relief,  his  demuiTcr  will  be  ovemJed.  Edwards  v. 
Hulbert,  54 

19.  Where  a  defendant  demurs  to  discovery  and  relief,  when  he  should  have 
demuned  to  discovery  only,  his  demurrer  will  be  ovemiled.  Burpee  v. 
Smith,  327 

20.  Where  one  of  several  defendants  demurs  to  discovery  on  the  ground  that  it 
would  subject  him  to  a  criminal  prosecution,  his  demurrer  should  be  con- 
fined to  such  parts  of  the  bill  as  tend  to  impUcate  him  in  the  supposed  crime. 
Id.,  327 

21.  A  demurrer  may  be  good  as  to  one  defendant,  and  bad  as  to  other  de- 
fendants.    Barstow  v.  Smith,  394 

526 


INDEX.  579 

TlEA.DmG— Continued. 

IV.    Plea. 

22.  A  plea  must  rest  the  defense  upon  a  single  point;  and  a  plea  containing 
two  distinct  points,  is  bad,     Albunij  City  Bank  v.  Dorr,  317 

2)1  A  plea  must  be  positive,  and  not  on  belief,  when  it  states  a  fact  within  de- 
fendant's knowledge,  or  touching  his  own  acts,  but  when  it  reliites  to  the 
act  of  third  persons  and  not  to  defendant's  own  act,  it  may  be  on  informa- 
tion and  belief.    Parker  v.  Parker,  457 

V.    Answer. 

24.  Where  a  biU  is  filed  under  a  statute,  where  there  is  an  exception  in  the  en- 
acting clause,  it  must  negative  the  exception;  but,  where  there  is  no  excep- 
tion to  the  enacting  clause,  but  an  exemption  in  a  proviso  thereto,  or  in  a 
subsequent  section  of  the  act,  it  is  matter  of  defense,  and  must  be  shown  by 
the  defendant.     Attorney  General  v.  Oakland  County  Bank,  90 

25.  The  defense  in  such  case  should  state  facts,  and  not  conclusions  of  law. 
Id.,  90 

26.  Where  the  answer  is  put  in  issue,  the  defendant  must  prove  what  he  in- 
sists on  by  way  of  avoidance.    Id.,  IKJ 

27.  Where  an  answer  on  oath  is  waived,  it  must,  notwithstanding,  be  signed 
by  defendant.     Kimball  v.  Ward,  439 

28.  When  a  defendant,  who  might,  by  demurrer  or  plea  to  the  whole  bill, 
have  protected  himself  against  a  particular  discovery,  submits  to  answer 
the  whole  bill,  he  must  answer  as  fully  as  in  any  other  case.  Gilkey  v. 
Paige,  520 

29.  When  irrelevancy  is  made  a  gi'ound  for  refusing  to  answer  a  particular 
question,  or  part  of  a  bill,  it  should  appear  that  an  answer  to  such  part 
would,  in  no  aspect  of  complainant's  case,  as  made  by  the  bill,  be  of  ser\ace 
to  him.     Id.,  '  '      520 

VI.     Cross  Bill  and  Beplication. 

30.  A  cross-bill  is  necessary,  where  the  defendant  is  entitled  to  some  positive 
relief,  beyond  what  the  complainant's  bill  will  afford  liim.  Schirarz  v. 
Sears,  170 

31.  When  a  rephcation  to  a  plea  is  filed,  the  truth  of  the  plea  is  the  only  ques- 
tion to  be  tried,  and  if  estabhshed,  it  is  a  bar  to  so  much  of  the  bill  as  it  pro- 
fesses to  cover.     Hurlhiit  v.  Britain,  454 

See  Admissions,  1.    Condition,  1.    Evidence,  1,  10,  11,  12, 13, 14.    Hus- 
band AND  Wife,  2.    Moijtoage,  28.    Notice,  1,  2.    Partition. 

527 


580  INDEX. 


PRACTICE. 

I.  Filing  bill  and  process. 

II.  Motion  and  orders, 

III.  Amending  and  dismissing  bill. 

TV.  Taking  bill  j^'o  confesso  and  opening  decree. 

V.  Excepting  to  answer. 

VI.  Taking  testimony,  and  other  intermediate  proceedings. 

VII.  Hearing  and  rehearing. 

VIII.  Reference  to  Master,  Reports  and  exceptions. 

I.    Filing  bill.,  and  process. 

1.  Where  a  petition  was  not  sig-ned  by  the  petitioner,  but  was  verified  by  an 
affidavit  signed  by  her,  which  stated  that  she  had  read  it,  and  knew  the 
contents  of  it.  and  that  it  was  true,  it  was  held  to  be  a  sufficient  signature 
of  such  petition.    Johnson  v.  Johnson,  309 

2.  Where  the  subpoena  was  served  on  the  keeper  of  the  State's  prison,  instead 
of  on  the  defendant,  who  was  confined  therein,  the  service  was  held  suffi- 
cient.   Id.,  309 

3.  The  service  of  a  subpoena  was  set  aside  as  irregular,  where  the  copy  deliver- 
ed to  the  defendant  varied  from  the  original,  in  being  tested  on  the  31st 
day  of  October,  1840,  instead  of  1843.     Gould  v.  Trijon,  339 

II.    Motions  and  orders. 

4.  After  a  motion  has  been  denied  on  its  merits,  it  should  not  be  renewed, 
without  leave  of  the  Court,  on  the  same  facts,  or  any  new  facts  which 
might  have  been  included  in  the  first  motion.  The  party  must  present  all 
of  his  case  at  once,  whether  he  have  several  grounds  or  not.  Johnson  v. 
Johnson.,  309 

5.  An  order  in  part  erroneous  is  not  void,  so  far  as  relates  to  matters  proper- 
ly contained  in  it.    Howard  v.  Palmer,  391 

6.  Where  a  plea  had  been  filed  to  an  original  bill,  and  complainant  amended  his 
bill,  and  defendants  answered  the  amendments,  it  was  held,  that  the  plea 
was  superseded  by  the  amended  bill,  and  a  motion  to  take  it  from  the  files 
for  irregularity  was  denied,  the  proper  motion  being  to  take  the  answer 
to  the  amendments  from  the  files.    Peck  v.  Burgess,  485 

III.    Amending  and  dismissing  bill. 

7.  A  complainant  may,  at  any  time  before  there  has  been  an  interlocutory  or 
final  decree  in  a  cause,  dismiss  the  bill  of  course,  on  payment  of  costs. 
Seymour  v.  Jerome,  356 

8.  Where  an  interlocutory  order  had  been  entered  by  consent  of  parties,  oper- 

528 


INDEX.  581 

VRkCTlCE— Continued. 

ating  as  an  adjudication  to  somo  extent  on  the  riprhta  of  the  parties,  the 
Court  refused  to  allow  the  complainant  to  dismiss  his  bill.   /(/.,  356 

9.  Where  leave  is  given  to  complainant  to  dismiss  his  bill  conditionally,  the  de- 
fendant may,  until  the  con(htion  is  complied  with,  consider  the  case  as  in 
Court  or  out  of  Court,  at  his  discretion;  and  may  either  proceed  in  it,  or 
consider  it  dismissed  and  apply  to  the  Court  to  enforce  the  payment  of  his 
costs.     Jerome  v.  Seymour,  359 

10.  Where  leave  had  been  granted  complainant  to  dismiss  his  bill  on  payment 
of  costs,  and  the  order  was  entered  generally  without  mentioning  costs,  on 
application  of  the  defendant,  it  was  ordered  to  be  amended  so  as  to  cor- 
respond with  the  terms  on  which  leave  to  dismiss  was  granted.    Id.,      359 

11.  It  is  usual  on  allowing  a  demurrer  for  any  cause  which  the  Court  sees,  on  the 
argument,  may  be  obviated  by  amending  the  bill,  to  give  leave  to  amend 
on  paying  the  costs  of  the  demurrer.  But  where  the  Court  on  the  argu- 
ment cannot  see  from  the  facts  before  it,  how  the  objection  on  which  the 
demurrer  was  sustained  could  be  removed,  it  is  necessary  for  the  com- 
plainant to  apply  for  leave  to  amend,  by  petition  setting  forth  the  addi- 
tional facts  sought  to  be  incorporated  in  the  bill.  Bank  of  Michigan  \. 
Niles,  398 

12.  Where  a  petition  was  presented  for  leave  to  amend  a  bill,  by  inserting  addi- 
tional facts,  after  a  decree  sustaining  a  demurrer  to  the  bill  had  been  af- 
finned  by  the  Supreme  Court,  on  the  same  reasons  which  had  governed 
this  Court,  it  was  held,  that  the  application  came  too  late.    Id.,  398 

13.  A  complainant  wishing  to  amend  his  bill,  must  take  the  first  opportunity 
after  being  made  acquainted  with  the  defects  in  it,  to  ask  leave  to  do  so. 
Id.,  398 

14.  Where  no  answer  had  been  put  in  to  an  injunction  bill,  leave  was  granted 
to  amend  so  as  to  waive  an  answer  under  oath,  on  payment  of  costs. 
Bronson  v.  Green,  486 

IV.     Taking  bill  pro  confcsso,  and  opening  decree. 

15.  In  applications  for  opening  decrees  obtained  regularly  by  default,  no  general 
rule  can  be  laid  down ;  but  each  case  must,  in  a  great  measure,  depend 
upon  its  own  circumstances,  and  the  sound  discretion  of  the  Court. 
Russell  V.  Waife,  ■  31 

16.  Such  a  decree  should  be  opened  only  under  special  circumstances,  and  to 
promote  the  ends  of  justice.    Id.,  31 

IT.  After  a  decree  has  been  entered  on  a  bill  regularly  taken  as  confessed,  the 
question  of  opening  it,  to  let  in  a  defense  on  the  merits,  should  be  brought 
before  the  Court  by  petition,  accompanied  by  the  answer  proposed  to  be 
put  in.    Hart  v.  Jjinsdai/,  72 

18.  A  decree  regularly  entered  will  not  be  opened,  except  under  special  circum- 
YoL.  I.— 34  529 


582  INDEX. 

PRACTICE.— Continued. 

stances,  and  a  stronger  case  must  be  made  for  this,  than  to  vacate  an  or- 
der ^ro  confesso  before  decree.    Id.,  T2 

19.  Where  a  party  defendant  has  been  sruilty  of  gross  negligence,  a  decree  will 
not  be  opened,  neither  will  a  re-taxation  of  costs  be  ordered,  or  sale  be  set 
aside.    Id.,  "^'^ 

V.     Excepting  to  answer. 

20.  "Where  a  defendant  both  answers  and  demurs  to  different  parts  of  the  bill, 
and  the  demurrer  is  overruled,  complainant,  to  obtain  a  further  answer, 
must  except,  under  the  thirty-fourth  rule  of  the  Court,  to  the  answer 
already  put  in  by  defendant,  within  twenty  days  after  the  demurrer  is 
overruled.    Bragg  v.  Whitconib,  307 

VI.     Tahing  testimony,  and.  other  intermediate  proceedings. 

21.  An  agreement  between  counsel  in  a  case  must  be  in  writing,  or  reduced 
to  the  form  of  an  order  by  consent,  pursuant  to  the  provisions  of  rule  87, 
in  order  to  be  noticed  by  the  Court.     Suydam  v.  Dequindre,  23 

22.  Practice  in  chancery  in  regard  to  the  impeachment  of  witnesses  the  same 
as  at  law.     Sawyer  v.  Sawyer,  48 

23.  Before  the  credit  of  a  witness  can  be  impeached  by  proof  of  inconsistency  in 
liis  declarations,  a  foundation  must  be  laid  by  questioning  him  on  cross- 
examination  as  to  his  former  statements,  that  he  may  have  an  opportunity 
for  exi^lanation.    Id.,  4'^ 

24.  Having  laid  this  fouftdation,  a  party  may  proceed  without  exhibiting 
articles  of  impeachment.    Id.,  48 

25.  Each  party  must  pay  for  taking  down  the  cross-examination  of  his  adver- 
sary's witness,  as  well  as  the  direct  examination  of  his  own.     Id.,       4S 

26.  A  witness  having  been  examined,  after  his  examination  is  closed  cannot  be 
re-examined  as  to  the  same  facts  without  an  order  of  the  Court;  but  he  may 
be  as  to  other  facts,  or  new  matter  arising  out  of  the  testimony  of  other 
witnesses.     Id.,  48 

27.  Where  a  time  had  been  set  for  the  examination  of  one  of  the  defendant's 
witnesses,  and  the  commissioner  and  complainant's  counsel  attended  and 
waited  an  hour  and  a  half,  during  which  time  defendants  did  not  appear 
with  their  witness,  and  complainants  then  left,  refusing  to  wait  longer, 
held  that  new  notice  should  have  been  given  them;  and  the  deposition  of 
the  witness  taken  after  complainants  had  left,  without  such  notice,  was 
suppressed.     Stockton  v.  Williams,  120 

28.  It  is  the  settled  practice  of  this  Court  in  an  affidavit  of  merits,  to  require  the 
party  to  state  what  such  merits  are.     Thayer  v.  Swift.  3.84 

29.  Where  a  party  applies  for  leave  to  take  testimony,  after  the  time  allowed 

530 


INDEX.  583 

I'RACTICE.— Continued. 

by  the  rules  has  expired,  he  must  state  in  liis  apphcation  what  he  expects 
to  be  able  to  prove  by  the  witnesses  he  seeks  leave  to  examine.    Id.,     384 

30.  A  complainant  seeking  to  set  aside  the  rules  of  the  Court,  will  be  compelled 
to  make  as  strong  a  case,  as  a  defendant  to  set  aside  a  default.    /(/. ,    384 

31.  This  Court  will  take  no  notice  of  a  parol  agreement  between  the  solicitors 
relating  to  the  proceedings  in  a  cause,  but  require  all  agreements  to  con- 
form to  the  87th  rule.    Brooks  v.  Mead.  389 

32.  Where  complainant  had  failed  to  serve  his  replication  on  a  defendant,  but 
the  latter  attended  and  cross-e.Kamined  witnesses,  it  was  held  to  be  a  waiver 
of  all  objections  to  the  replication.    Id.,  .389 

.')3.  Where  an  order  to  take  proofs  was  duly  entered,  but  notice  was  not 
given  within  the  thirty  days  required  by  rule  50,  and  the  examination  of  a 
witness  was  objected  to  before  the  Master  on  that  ground,  his  deposition 
was  suppressed.     Bachelor  y.  Nelson.  449 

VII.     Hearing  and  rehearing. 

'>4  Where  the  comi^lainants  under  the  statute  of  1840,  in  order  to  obtain  the 
decree  sought,  were  requu-ed  to  substantiate  their  own  title,  held,  that  the 
defense  of  one  defendant  enures  to  the  benefit  of  the  rest.  Stockton  v, 
Williams.  120 

35.  A  rehearing  will  not  be  granted  where  a  party,  by  lapse  of  time,  has  lost 
his  right  to  an  appeal.     Benedict  v.  Thompson.  446 

36.  It  is  not  a  matter  of  course  to  allow  a  deed  to  be  proved  at  the  hearing, 
but  a  satisfactory  excuse  must  be  given  for  the  failure  to  prove  it  before 
the  Master.     Bachelor  v.  Nelson.  449 

37.  The  documentary  evidence  referred  to  in  the  56th  rule,  has  reference  to 
documents  whicli  prove  themselves.  But  to  entitle  a  party  to  use  such 
documentary  evidence  in  any  case,  there  must  have^been  an  order  entered 
for  taking  proof's,  to  give  the  opposite  party  an  opportunity  of  examining 
witnesses  i-elative  thereto,  or  of  introducing  countervailing  proofs.  Id.,  449 

VIII.     Reference  to  Master,  Beport  and  exceptions. 

38.  Where,  on  a  reference  to  a  Master  to  ascertain  the  amount  due  on  a  mort- 
gage, the  mortgagor  appeared  before  the  Master,  and  at  first  refused  to 
take  a  part  in  the  proceedings,  but  after  remaining  in  the  Master's  office 
for  an  hour  or  more,  and  before  the  opposite  party  had  left,  offered  to  prove 
certain  payments  on  the  mortgage,  and  the  Master  refused  to  hear  the 
testimony,  on  the  groimd  that  his  report  was  closed,  or  that  it  was  then 
too  late,  the  Court  decided  that  the  Master  should  have  heard  the  testi- 
mony offered.     Schivarz  v.  Sears-  19 

39.  Where  a  Master  has  erroneously  refused  to  receive  testimony,  a  motion 
should  be  made  for  an  order  requiring  him  to  I'eceive  it;  and  this  should 

531 


584  INDEX. 

TKACTICE— Continued. 

be  done  immediately,  and  without  waiting  for  him  to  make  his  report. 
Id.,  19 

40.  The  Master  should  in  such  case,  at  the  request  of  either  party,  m&ke 
out  and  deliver  to  the  party  requiring  it,  a  certificate  stating  briefly  the 
facts  of  the  case,  and  his  reasons  for  rejecting  the  testimony;  that  the 
Court  may  review  his  decision  with  as  little  delay  as  possible.    Id.,        19 

41 .  Exceptions  to  a  Master's  report,  are  proper  only  where  the  Master  has  come 
to  an  en-oneous  conclusion,  either  of  law  or  fact,  on  the  whole  or  some  part 
of  the  evidence  before  him,  toucliing  the  subject  matter  of  the  reference. 
Id.,  19 

42.  Practice  as  to  confirmation  of  Master's  report  under  the  eighty-second 
inile  of  the  Court.     Suydam  v.  Dequindre,  23 

43.  Where  the  proceedings  before  a  Master  have  been  uTegular,  his  report 
may  be  set  aside  for  irregularity,  on  motion.  In  such  case  an  order  should 
be  obtained  enlarging  the  time  to  except  until  the  motion  can  be  heard  and 
decided.    Id.,  23 

44.  "Where  the  Master  decides  against  allowing  a  claim  presented,  the  proper 
way  of  bringing  the  question  before  the  Court,  is  by  exception  to  the  Mas- 
ter's report.     Id.,  23 

45.  1.  If  the  defendant  wishes  to  controvert  any  allegations  in  the  bill,  he 
should  put  them  in  issue  by  plea  or  answer,  and  neglecting  this,  he  is  pre- 
cluded from  introducing  evidence  for  that  purpose  before  the  Master,  on  a 
reference.     Ward  v.  Jeivett.  45 

46.  Where  a  Master  erroneously  refuses  to  receive  testimony,  the  proper  way 
to  correct  it  is  by  motion  to  the  Court  for  an  order  compelling  him  to  re- 
ceive the  evidence,  and  not  by  excepting  to  his  report.     Id.,  45 

47.  The  time  iixed  by  the  Master  for  the  service  of  a  summons,  should  be  stated 
in  the  summons  itself,  or  form  a  part  of  the  underwriting,  where  the  lat- 
ter is  necessary  to  infoiTQ  the  party  of  the  object  of  the  hearing;  and  the 
underwriting,  as  well  as  the  summons,  should  be  signed  by  the  Master. 
Whipple  V.  Stewart,  357 

48.  Where  a  defendant  appeared  before  a  Master  at  the  return  of  a  summons, 
and  objected  to  his  proceeding,  on  the  ground  that  no  time  had  been  fixed 
for  the  service  of  the  summons,  it  tvas  held,  that  such  appearance  was  no 
waiver  of  his  right  to  make  such  objection.     Id.,  Sol 

49.  Where  proceedings  are  to  be  had  under  an  order  of  reference  to  a  Master,  it 
is  not  necessary  to  serve  a  copy  of  such  order  on  defendant  with  the  Mas- 
ter's summons,  but  he  is  bound  to  take  notice  of  it  without  service.  Id.,  357 

50.  Tlie  service  of  a  copy  of  a  Master's  summons,  without  showing  the  orig- 
inal, is  bad.     Howard  Y.  Pahner,  391 

51.  When  a  Master  has  commenced  proceedings  under  an  order  of  reference, 
they  should  be  completed  by  him;  and  the  party  obtaining  the  order  can- 

532 


INDEX.  585 

PRACTICE.— ConimwefZ. 

not  transfer  the  proceedings  to  another  Master  to  be  complotod.     Bishop 
V.  WiUiums,  42.) 

r)2.  It  is  improper  for  a  Master,  to  perform  any  official  act.  as  Moster,  in  a 
cause  in  wliich  he  is  solicitor,  or  partner  of  the  solicitor.    Broun  v.  Bi/rne. 

53.  Where  a  bill  for  a  divorce  is  taken  as  confessed,  and  a  reference  is  had  to  a 
Master  to  take  proof  of  the  material  facts  in  the  bill,  he  nmst  report  hix 
opinion  on  them,  with  the  testimony  taken.     Emmons  v.  Emmons,        5:'.2 

Tii.  The  object  of  a  reference  in  this  class  of  cases,  is  to  jjuard  against  collusion 
by  the  parties;  and  the  Master,  in  addition  to  the  questions  asked  by  com- 
plainant', should  examine  the  witnesses  himself,  that  he  may  give  his 
opinion  understandingly.     Id.,  5;r{2 

See  Admissions,  2.  Appeal.  Costs,  2,  4,  5,  Election,  2.  Guardian 
AND  Wakd,  3.  Injunction,  1,  2,  3,  4,  5,  10,  12.  Judgment  Credi- 
tor's  Bill,  3,  19,  20,  21.  Jurisdiction,  6.  Laches,  4,  5.  Mort- 
gage, II. 

PRIORITY. 

See  Assignment,  2,  3.    Mortgage,  9. 

PROMISSORY  l^OTE. 

1 .  To  cut  off  the  equities  of  the  original  parties  to  a  promissory  note,  in  the 
hands  of  a  third  person,  the  holder  must  not  have  received  it  in  payment 
of  an  antecedent  debt,  but  he  must  have  parted  with  something  for  it  at 
the  time,  or  incurred  responsibilities  to  a  third  person  on  the  credit  of  it. 
Jngerson  v.  Starkiveather,  346 

2.  The  law  does  not  raise  a  presumption  of  non-payment,  but  of  pajnnent  when 
due,  unless  the  contrary  is  shown  by  production  of  the  note,  or  other  evi- 
dence repelling  the  presumption  of  law  when  the  note  itself  cannot  be 
produced.  Bailey  v.  Gould,  478 

See  Jurisdiction,  3.    Mortgage,  10,  29,  32. 

PUBLIC  GRANTS. 

See  Construction,  5, 

RECEIVER. 

See  Judgment  Creditor's  Bill,  17.  20,  21.    Laches.  2.    Mortgage.  17. 

REHEARING. 

See  Practice,  35. 

533 


586  mDEX. 

REGISTRY. 

1.  The  registry  of  au  instrument  not  required  by  law  to  be  recorded,  is  notice 
to  no  one.     Wing  v.  McDowell,  i7o 

2.  The  ordinance  of  1787,  for  the  government  of  the  Northwest  Territory,  does 
not  declare  that  a  deed  shall  be  void,  or  that  the  title  to  land  shall  not  pass 
by  it,  unless  such  deed  be  recorded.  The  object  of  all  registry  laws  is  to 
protect  subsequent  bona  fide  purchasers,  and  there  is  nothing  in  the  ordi- 
nance making  an  unrecorded  deed  void  as  against  the  grantor.  Godfroy 
V.  Disbroiv,  260 

3.  Under  the  act  of  June  9th,  1819,  it  is  necessary  for  a  party  who  wishes  to 
avoid  the  eft'ect  of  a  subsequent  conveyance  first  recorded,  to  show  that  the 
grantee,  in  such  conveyance,  had  notice  of  the  prior  conveyance  when  he 
took  his  deed,  or  that  he  had  not  paid  a  good  and  valuable  consideration. 
Id.,  260 

4.  The  presumption  is,  that  a  subsequent  purchaser,  who  has  got  his  deed  first 
recorded,  is  a  bona  fide  purchaser  without  notice,  until  the  'contrary  is 
made  to  appear.    Id.,  260 

See  Mortgage,  IV. 
STATUTE  OF  FRAUDS. 

The  delivery  of  possession  under  an  agreement,  is  an  act  of  part  performance. 
Weed  V.  Terry,  501 

STATUTES  COMMENTED  ON  AND  EXPLAINED. 

1.  Revised  Statutes,  p.  378,  §  117.     Alhamj  Citij  Bank  v.  Steevens,  6 

2.  Revised  Statutes,  p.  261,  §  32.     Bussell  v.  Waite,  31 

;'.   Laws  1843,  p.  139,  relative  to  suits  in  ejectment  by  mortgagees.     Stevens 
V.  Brown,  note,  42 

4.  Laws  1843,  p.  7,  relative  to  alimony.     Sawyer  \.  Sawyer,  note,  p.         53 

5.  Revised  Statutes,   p.   379,  §§  122,  123,  relative  to  appeals.     Weed  v. 
Lyon,  77 

6.  Act  of  June  21st,  1837,  relative  to  proceedings  in  chancery  against  corpo- 
rations.    Attorney  General  v.  Oakland  County  Bank,  90 

7.  Laws  of  1840,  p.  127;  act  relative  to  quieting  titles  to  land  in  chancery. 

Stockton  V.  Williams,  120 

8.  Act  to  authorize  the  conveyance  of  real  estate  of  minors  in  certain  cases, 
approved  February  28th,  1840.     Dorr,  petitioner,  &c.,  145 

9.  Ordinance  of  1787.    La  Plaisance  Bay  Harbor  Co.  v.  City  of  Monroe,   155 
'  Godfroy  v.  Disbrow,  260 

534 


INDEX.  587 

STATUTES  COMMENTED  ON  AND  EXPLAINED— Con^nwetZ. 

10.  Acts  relative  to  the  Michigan  State  Bank.     Hammond  v.  Michigan  State 
Bank,  214 

11.  Act  of  March  31st,  1840,  relative  to  the  foreclosure  of  mortgages.    Wood- 
hiiri/  V.  Lewis,  2o6 

12.  RegLstry  act  of  June  9tli,  181'J.     Gcd/ro;/  v.  Dishrow,  2G0 

l'>.  Revised  Statutes,  373,  §  89,  relative  to  foreclosure  of  mortgages  against 
non-residents.    Bailey  v.  Murphy,  305 

14.  Revised  Statutes,  377,  §  109,  relative  to  foreclosure  in  chancery.    Dennis 
V.  Hemingway,  387 

1-").  Act  of  1840,  relative  to  acknowledgment  of  deeds  by  femes  covert.    Bar- 
s-tow  V.  Smith,  394 

IT).  Revised  Statutes,  379,  §  121,  relative  to  chancery  jurisdiction  of  Supreme 
Court.     Ba)ik  of  Michigan  v.  Niles,  398 

17.  Appraisal  Laws.     Benedict  v.  Thomjjson,  446 

15.  Foreclosure  against  non-residents.     Latvrence  v.  Fellows,  468 

19.  Statute  of  frauds  of  1833.     Wood  v.  Savage,  All 

20.  Act  of  Congress  of  March  3d,  1807,  regulating  grants  of  land  in  the  Ter- 
ritory of  Michigan.     Chene  v.  Bank  of  Michigan,  511 

21.  Statutes  relative  to  insolvent  estates.  Quackenbush  y.  Campbell,  adm., 
iC-c,  525 

SUPREME  COURT. 

See  .luRiSDiCTiON,  7. 

SURETY. 

Where  a  surety,  whose  property  had  been  levied  on,  paid  a  judgment  confessed 
by  hunself  and  principal  for  a  usurious  loan,  with  a  knowledge  of  the  usury, 
it  tvas  held,  that  he  might  recover  the  amount  so  paid  by  him,  of  his  prin- 
cipal.    Thurston  v.  Prentiss,  529 

See  Debtor  and  Creditor,  3.    Mortgage,  10. 

TESTIMONY. 

See  Practice,  VI. 

TREATY. 

When  a  treaty  makes  no  special  provision  for  deciding  questions  of  individ- 
ual identity,  they  must  be  decided  by  the  judicial  tribunals  of  the  coim- 
try.     Storhinn  v.  Williams,  120 

See  EviDHNXE,  5.     Fkaud,  1.     Lands  and  Land  Titles,  2,  3,  4. 

535 


588  INDEX. 


TRUST. 


1 .  A  trustee  is  not  allo-wed  to  deal  with  the  cestui  que  trust  as  with  a  third  per- 
son, and  purchases  of  trust  property  made  by  him,  will  not  be  sustained, 
unless  the  Court  is  satisfied  that  he  has  acted  throug-hout  with  the  most 
perfect  fairness,  and  taken  no  advantage  of  his  peculiar  relation. 
ScJiwarzw.  Wendell,  267 

2.  The  defendant  W.,  a  trustee,  having  au  opportunity  to  make  what  it  was  sup- 

posed would  be  an  advantageous  purchase  for  his  cestui  que  trust,  a  mar- 
ried woman,  of  the  remaining  two-thirds  of  land  of  which  she  owned  an 
undivided  third,  refused  to  make  it  without  an  equal  share  of  the  profits, 
and,  by  his  advice,  and  that  of  her  husband,  the  cestui  que  trust  was  in- 
duced to  make  a  note  for  $4,000,  to  raise  money  for  the  purchase,  which 
was  indorsed  by^  W.  and  finally  paid  out  of  the  trust  funds;  and  the  hus- 
band, March  7th,  1836,  without  consulting  the  cestui  que  trust,  agreed 
with  W.  on  her  behalf,  that  he  should  have  half  of  the  profits  of  the  prop- 
erty to  be  purchased,  deducting  traveling  expenses,  <tc.,  attending  the 
same,  and  if  he  should  not  succeed  in  purchasing,  that  his  expenses  should 
be  paid;  and  W.  purchased  one  of  the  two-thirds  and  took  a  conveyance 
of  it  to  himself,  as  trustee.  An  oifer  bemg  made  for  the  purchase  of  one- 
third,  W.  advised  the  cestui  que  trust  and  her  husband  to  accept  it,  but 
they  declined;  and  W.  insisting  on  selling  his  share,  they  agreed  to  pur- 
chase from  him,  and  pay  him  what  would  be  his  share  of  the  profits,  by 
assigning  a  certain  bond  and  mortgage,  and  giving  a  note  for  the  balance. 
When  the  assignment  was  drawn  up,  the  cestui  que  trust  declined  execut- 
ing it,  alleging  that  she  wanted  the  property  for  other  purposes,  and  also 
that  an  account  presented  by  W.  was  too  high.  W.  then  requested  her 
to  set  off  his  share  of  the  land,  and  appoint  another  trustee.  She 
then  agreed  to  purchase  his  share  on  the  conditions  previously 
agreed  to,  and  a  new  trustee  was  appointed.  In  this  settlement  a 
note  was  given  by  the  cestui  que  trust  and  her  new  trustee,  for  $3,980.24, 
to  pay  the  account  which  W.  had  presented  for  his  services.  The  Court 
set  aside  the  agreement  of  March  7,  1836,  and  the  sale  by  W.  to  the  cestui 
que  trust,  and  decreed  that  W.  should  procure  the  note  for  $3,980.24, 
(which  he  had  transferred.)  to  be  canceled,  or  else  that  the  amount  of  it, 
with  interest  from  the  day  it  fell  due,  should  be  charged  against  him  in 
the  account  to  be  taken  of  his  trust,  and  that  he  should  be  allowed  a  rea- 
sonable compensation  for  his  services  as  trustee.     Id.,  267 

3.  The  agreements  of  a  husband  of  the  cestui  que  trust,  in  relation  to  the  trust, 
are  not  binding  upon  her.     Id.,  267 

4  A  trustee  is  entitled  to  a  reasonable  compensation  for  his  time  and  services. 
Id.,  267 

.').  V.^here  the  object  of  a  suit  is  to  place  trust  property  in  the  possession  of  the 
trustee,  and  not  to  affect  the  existence  of  the  trust  or  trust  property,  the 
cestui  que  trust  is  not  a  necessaiy  party.     Morey  v.  Forsyth,  465 

See    Administrator,   1.    Agency,  3.     Fraud,   1.    Lands    and    Land 
Titles,  5.    Mortgage,  7.    Vendor  and  Purchaser,  2. 
536 


INDEX.  589 

USURY. 

The  effect  of  usury  under  our  statute  is,  not  to  avoid  the  contract,  but  to  reduce 
the  amount  which  the  usurer  is  entitled  to  recover  to  the  money  actually 
loaned,  with  lej^al  interest.     Thurston  v.  Prentiss,  _  529 

VENDOR  AND  PURCHASER. 

I .  Wliere  a  party  purchases  land  in  possession  of  a  third  person,  with  a  knowl- 
edge of  the  fact,  he  takes  it  subject  to  all  equities  existiuf?  between  his 
vendor  and  the  person  in  possession.    Eood  v.  Chapin,  79 

'3.  In  equity,  a  vendee,  under  a  contract  for  the  sale  of  lands,  is  considered  as 
a  tnistee  of  the  purchase  money  for  the  vendor,  who  is  I'egarded  as  a  trustee 
of  the  land  for  the  former.  The  land  is  in  equity  the  property  of  the  ven- 
dee, who  may  dispose  of,  or  encumber  it  in  like  manner  with  land  to 
which  he  has  the  legal  title,  subject  to  the  rights  of  the  vendor  under  the 
contract.     Wing  v.  McDowell,  175 

3.  Where  the  first  purchaser  is  in  possession  of  the  premises,  and  the  second 
purchaser  is  aware  of  that  fact  at  the  time  he  purchases,  that  is  sufficient 
notice  to  him  of  the  rights  of  the  first  purchaser;  and  he  must  take  the 

•  premises  subject  to  all  equities  existing  between  his  grantor  and  the  first 
purchaser.     Godfroy  v.  Dishroiv.  260 

4.  Although  a  party  may  not  himself  be  a  bona  fide  purchaser,  yet,  if 
his  grantor  was  such  purchaser,  the  former  is  entitled  to  all  his  rights, 
and  the  protection  which  the  law  would  give  him.    Id.  260 

5.  A  vendee  is  chargeable  with  notice  of  the  contents  of  a  deed  to  his  grantor, 
through  which  he  claims  title.     Mason  v.  Payne,  459 

6.  Where  defendant  received  a  grant  of  the  right  to  use  certain  water  power, 
and  dig  a  race  on  complainant's  land,  in  consideration  of  erecting  a  mill 
at  a  certain  place  where  their  lands  joined,  and  then  built  his  mill  at  an- 
other place,  and  diverted  the  water  from  complainant's  land,  it  loas  held, 
that  the  consideration  had  failed,  and  the  complainant  was  entitled  to  a 
reconveyance;  and  defendant  was  enjoined  from  setting  up  his  deed  in 
defense  of  any  action  for  a  previous  diversion  of  the  water.  Jacox  v. 
Clark,  508 

See  Fkaud,  2. 

VOLUNTARY  CONVEYANCE. 

Every  voluntary  conveyance  by  a  parent  to  a  child,  is  not  fraudulent  against 
creditors,  but,  when  made  in  good  faith  by  way  of  advancement,  and 
abundant  property  is  retained  by  the  parent  to  pay  all  his  debts,  it  is  good 
against  existing  as  well  as  subsequent  creditors.     Cutter  v.  Griswold,   437 

See  Fraud,  11. 
WAIVER. 

A  waiver  should  not  be  implied  from  slight  circumstances.     Bird  v.  Hamil- 
ton, 361 
See  Injuxction,  8,  11.    PARXNEKsnip,  3.    Practice,  32,  33 

53T 


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